The employees free choice act

The Afl-Cio says that the bill is a non partisan bill.
In the Senate there are 47 co sponsors, all democrats.
In the House there are 234 co sponsors, all but 5 are democrats.

That sounds very partisan to me.

Here is what this bill is all about.

Does a ballot cast in private or a card signed in pub­lic better reveal a worker's true preference about whether to join a union? A private vote is the obvious answer, but organized labor has nonetheless made the misleadingly named Employee Free Choice Act (EFCA, H.R. 800) its highest legislative priority.

Recently, unions have switched the focus of their organizing operations from private balloting to publicly signed cards. These so-called card-check campaigns make it much easier for unions to orga­nize workers, but most companies strongly resist the idea of denying their employees a vote. Unions now want the government to take away workers' right to vote and certify unions after only a card-check campaign. The Employee Free Choice Act would do this and more.

First, it requires the National Labor Relations Board to certify a union after a majority of a firm's workers has signed union cards, putting an end to almost all organizing elections: "if the [National Labor Relations] Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations...the Board shall not direct an election but shall certify the individual or labor organization."[1]

Second, the EFCA requires companies and newly certified unions to enter binding arbitration if they cannot reach agreement on an initial contract after 90 days of negotiations.[2] Neither companies nor employees could appeal the arbitrator's ruling, and the contract would last for two years.

Third, H.R. 800 would dramatically increase the penalties for unfair labor practices committed by employers, but not unions, during an organiz­ing drive.[3]

Union activists contend that the act would pro­tect workers' freedom to freely choose to join a union. However, workers' best defense against harassment and intimidation by either a union or an employer is a secret-ballot election in which nei­ther knows how any individual worker voted.

To protect American workers, Congress should:

* Protect workers' privacy during organizing drives and guarantee every worker the right to vote in a private-ballot election;
* Ensure that workers hear from both sides dur­ing an organizing drive and have time to reflect on their choice so they can make an informed and considered decision; and
* Protect the right of workers and employers to bargain collectively without having government officials unilaterally impose employment con­tracts on them.

The Employee Free Choice Act would strip workers of their fundamental rights and leave them more vulnerable to pressure than before.

The Case Against Card Check

America's labor laws are grounded in the princi­ple that workers should have the freedom to decide whether to bargain collectively with their employ­ers. The law protects workers from retaliation for deciding to join or to reject a union. A company must recognize a union supported by a majority of its workers and may not recognize a union that lacks majority support.

Under current law, union organizers can request an organizing election once 30 percent of a com­pany's workers sign union authorization cards in a "card check."[4] This constitutes a "showing of inter­est," and the National Labor Relations Board (NLRB) then orders that a secret-ballot election be held. These elections usually take place 39 days after the NLRB receives the cards.[5] Unions win about 60 percent of these certification elections.[6] Once the NLRB certifies the union as the employees' exclusive representative, the employer and the union begin negotiating a collective bargaining agreement. Through a process of mutual give and take, the two sides reach an agreement over wages and working conditions.

A company may choose to recognize a union that the NLRB has not certified if the union's organizers present union cards signed by a majority of the company's workers. Unions find it much easier to sign up workers when workers' choices are made in public. However, as the Supreme Court affirmed in NLRB v. Gissel Packing Co. (1969), publicly signed cards are "inherently unreliable," and a company may always request a private vote to confirm that its employees actually want to unionize. Companies usually insist on giving their workers the privacy of the voting booth and refuse to recognize unions without an election.

Fundamental Right to Vote in Privacy. The misleadingly named Employee Free Choice Act would end this system. The act would require com­panies to recognize a union without a private elec­tion once organizers submit union cards signed by a majority of workers in a company. This effectively replaces private organizing ballots with publicly signed cards.

Abolishing elections deprives workers of a fun­damental democratic right. Elections guarantee that all workers can express their views on whether they want to belong to a union. Under card check, how­ever, workers who have not been contacted by union organizers have no say in whether their workplace organizes. If organizers collect cards from a majority of workers, all workers must join the union without a vote.

Equally important, a democratic election with private ballots ensures that all workers can express their desires without fear of social stigma or retribu­tion. With a private ballot, no one else knows how any individual worker voted, and workers can express their intentions without outside pressure. For these reasons, the government protects the right of all Americans to vote for elected officials in pri­vate. American workers have the same right, and it should not be taken away because it impedes union organizing.

No Elections. Supporters of H.R. 800 contend that it would not prohibit private balloting but would simply give workers the option to choose whether to engage in a private vote or a card check.[7] This argument is very misleading. Under the EFCA, workers could not choose between dif­ferent organizing methods. The legislation re­quires the NLRB to certify a union without holding an election once organizers submit cards signed by a majority of workers. Those workers would never have the option to sign a card calling for an election that does not also count toward a card-check majority.

Under current law, an election occurs when union organizers hand in union cards signed by at least 30 percent of a company's workers. If they handed in cards from less than 50 percent of the workers, this would fall short of the EFCA's major­ity requirement and so would lead to a traditional private election. However, the choice of organizing method would belong solely to union organizers, not workers.

An election would occur only when union orga­nizers submit cards signed by a minority of work­ers; but union organizers rarely call for an election without signed cards from a majority of workers, because they know that unions usually lose these elections. The AFL-CIO's internal studies show that unions win only 8 percent of elections that are called after less than 40 percent of workers have signed cards.[8] With guaranteed certification under card check, organizers would almost never call for an election once they have obtained enough signa­tures. Workers would lose their right to a private vote as soon as union organizers collected cards from a majority of employees.

Threats and Intimidation. A private vote is more than a fundamental democratic right; it also protects workers and ensures that they can express their true views. An election ensures that workers can hear both sides, have time for reflection, and then vote their conscience without pressure or fear of retaliation. These safeguards disappear when workers must organize by publicly signing a card. Card checks fail to gauge accurately workers' desire to join a union.

Private ballots ensure that workers' decisions about whether to join a union remain private so that no one can threaten workers for making the "wrong" choice. With card checks, both the com­pany and the union know how workers voted, and this exposes workers to the possibility of retaliation. Though threats are illegal, they still occur, and not all of them are made by employers.

A union has a direct financial stake in the out­come of an organizing drive. If the workers orga­nize, the union will collect 1 percent to 2 percent of their wages in dues. These high stakes lead some organizers to cross the line and threaten workers who refuse to sign union cards. Two examples illus­trate this problem.

* In one card-check campaign investigated by the NLRB, a pro-union employee threatened a co-worker by saying that if she refused to sign the union card, "the union would come and get her children and that it would also slash her tires."[9]
* In another case, Thomas Built Buses agreed to recognize a United Auto Workers (UAW) card-check drive in exchange for significant advance wage concessions from the union. Employee Jeff Ward successfully challenged the sweetheart deal before the NLRB and forced the company to allow its workers to vote.[10] In response, the UAW posted flyers around the plant with Mr. Ward's home address, home phone number, and a map to his house. The flyers stated, "Jeff Ward lives here. Go tell him how you really feel about the union."[11]

Forcing workers to express their beliefs in public leaves them vulnerable to threats like these and makes card checks much less reliable than private ballots for revealing employees' true wishes.

Sales Pitch. Even when union organizers do not threaten workers, card checks often do not reveal workers' free and considered choice about joining a union because workers do not hear both sides' pitches and lack time for reflection. Instead, card checks force workers to choose in a high-pressure sales situation.

In a card-check campaign, groups of organizers meet with individual workers at their homes or else­where and press them to sign a union authorization card. Organizers do not simply present the argu­ments for and against joining the union and then ask for a worker's support. Instead, they employ psychological manipulation to induce workers to sign after hearing their pitch. One former union organizer described the process in congressional testimony:

[Organizers] are trained to perform a five-part house call strategy that includes: Intro­ductions, Listening, Agitation, Union Solu­tion, and Commitment. The goal of the organizer is to quickly establish a trust rela­tionship with the worker, move from talking about what their job entails to what they would like to change about their job, agitate them by insisting that management won't fix their workplace problems without a union and finally convincing the worker to sign a card....

Typically, if a worker signed a card, it had nothing to do with whether a worker was satisfied with the job or felt they were treated fairly by his or her boss.... [I]f someone told me that she was perfectly contented at work, enjoyed her job and liked her boss, I would look around her house and ask questions based on what I noticed: "wow, I bet on your salary, you'll never be able to get your house remodeled," or, "so does the company pay for day care?" These were questions to which I knew the answer and could use to make her feel that she was cheated by her boss. Five minutes earlier she had just told me that she was feeling good about her work situation.[12]

Signing a card after this kind of manipulation does not reflect an employee's unfettered and con­sidered choice.

Only One Side of the Story. Organizers have a job to do: recruit new dues-paying members to their union. They are not paid to inform workers of the downsides of unionizing. Instead, they make the strongest case they can for joining a union and ask workers to sign their card right then. A former union organizer explained the process:

We rarely showed workers what an actual union contract looked like because we knew that it wouldn't necessarily reflect what a worker would want to see. We were trained to avoid topics such as dues increases, strike histories, etc. and to constantly move the worker back to what the organizer identified as his or her "issues" during the first part of the house call.[13]

Union organizers understandably boast about the benefits unions bring members, but they do not bring up the six-figure salaries that union bosses pay themselves from members' dues, the fact that hundreds of union officials have been convicted of racketeering in the past five years, or the role that unions' inflexibility has played in driving some companies into bankruptcy. Instead, union organiz­ers make their pitch and ask workers to sign their cards immediately. By making card-check organiz­ing the norm, the Employee Free Choice Act would prevent workers from making informed decisions.

Harassing Holdouts. With card checks, union organizers know who has and has not signed up to join the union, allowing them to repeatedly approach and pressure reluctant workers who declined to sign after the first sales pitch. With this technique, a worker's decision to join the union is binding, while a decision to opt out only means "not this time."

Moreover, some organizers go beyond pressure to outright harassment. Hotel workers in Los Ange­les, for example, had to seek an injunction against union organizers after groups of eight to ten orga­nizers harassed employees on their homes' porches late at night.[14] A labor lawyer explained what hap­pened to Trico Marine employees during a card-check drive:

Some employees, when solicited at their homes by union representatives, said, "No," to signing a card; yet, they reported repeated, frequent home visits by union representa­tives continuing to try to secure their signa­tures, and they complained to the company of this harassment. After 8 visits, one vessel officer in southern Louisiana had an arrest warrant issued against a union organizer.... Employees volunteered that they signed cards just to stop the pressure and harassment.[15]

A card signed after union organizers' eighth pitch to a reluctant worker hardly reflects that worker's true opinion; nor does a card that is signed just to prevent further harassment.

Organizing Without Majority Support. Card-check campaigns expose workers to union threats and harassment and pressure them to commit after hearing a one-sided union sales pitch. Cards collected under those circumstances often do not reflect employees' free choice. Consequently card-check allows union activists to organize plants where a majority of workers oppose the union.

For example, Metaldyne Corporation agreed to allow the UAW to organize its workers with a card-check campaign in exchange for concessions at the bargaining table. The UAW soon collected union cards from a majority of workers, and Metaldyne agreed to recognize the UAW as its employees' rep­resentative. Soon afterwards, a majority of the com­pany's workers submitted a signed petition stating that they did not want a union and requesting that the NLRB decertify their union.[16] The signed union cards did not reflect the employees' true preferences.

Unions Know Card Checks Are Unreliable. Despite their public arguments in favor of the EFCA and card checks, union organizers candidly admit in private that card checks do not reflect workers' true beliefs. Union organizing manuals have long cautioned organizers that a worker's signature on a union card does not mean that he or she wants to join a union or will vote for the union in the elec­tion. The AFL-CIO's 1961 Guidebook for Union Organizers states:

NLRB pledge cards are at best a signifying of interest at a given moment. Sometimes they are signed to "get the union off my back"... Whatever the reason, there is no guarantee of anything in a signed NLRB pledge card except that it will count towards an NLRB election.[17]

Union organizers also acknowledge that a card-check campaign allows them to organize work­places without workers' majority support. United Food and Commercial Workers organizer Joe Crump openly admits that with card check, "You don't need a majority or even 30% support among employees."[18] Crump instructs organizers not to worry that aggressive campaigning for a company to skip an election might turn workers against the union, because "if you had massive employee sup­port, you probably would be conducting a tradi­tional organizing [election] campaign."[19]

Metaldyne was not an unusual case. Unions reg­ularly submit publicly signed authorization cards from a large majority of a company's workers only to see the workers reject the union in the privacy of the voting booth. In a study of organizing campaigns, the AFL-CIO admitted that "it is not until the union obtains signatures from 75% or more of the unit that the union has more than a 50% likelihood of winning the election."[20]

Unions Allege Abuses and Imbalances. It is difficult to argue for stripping workers of their right to a private vote. To justify putting an end to orga­nizing elections, unions argue that the elections take place "in an inherently and intensely coercive envi­ronment" and are stacked against workers who want to join a union.[21]

Unions allege that companies systematically fire pro-union workers, threaten to shut down if their workers unionize, and use stalling tactics to delay holding votes. At the same time, say the activists, companies bombard their workers with anti-union messages at work while union organizers do not have access to workers to make their case. They also claim that it takes so long for the NLRB to investi­gate violations that employers routinely ignore laws protecting workers.[22] In the words of one labor activist, government-supervised secret-ballot orga­nizing elections "look more like the discredited practices of rogue regimes abroad than like any­thing we would call American."[23]

If such abuses were occurring, depriving work­ers of a private vote would do almost nothing to stop them. However, the unions' allegations are either factually false or highly misleading. The facts show that employers rarely violate the law in orga­nizing drives and that, if anything, NLRB election procedures favor unions: Unions win 61 percent of all organizing elections.[24]

Illegal Firings Rare. Union activists argue that Congress should replace organizing elections with card checks because employers regularly fire union supporters during organizing election campaigns in order to intimidate the remaining workers.[25] They claim that this happens in one-quarter of organizing campaigns and that there were "31,358 cases in 2005 of illegal firings and other discrimination against workers for exercising their federally pro­tected labor law rights."[26]

If union activists' claims are correct, card checks would actually make it easier for companies to fire union supporters. Companies currently do not know how individual workers plan to vote in the privacy of the voting booth, but a union card signed in public is an entirely different matter. If the prac­tice of systematically firing workers who want to unionize is widespread, then the government should not strip those workers of their privacy by informing employers of exactly who has elected to unionize.

In fact, however, the activists' claims are false. Illegal firings of union supporters are rare. Most unfair labor practice complaints that unions brought before the NLRB in 2005 were either with­drawn or dismissed.[27] The NLRB found substanti­ated evidence of illegal firings in just 2.7 percent of organizing election campaigns that took place that year.[28]

Misleading Numbers. Unions justify their claims of widespread illegal firings by using unreliable data from biased sources and by misrepresenting gov­ernment statistics. Their claim that companies fire workers in one-quarter of organizing drives, for example, comes from a survey of union organizers that was conducted by a former union organizer.[29] Union organizers are not an impartial source, and actual government investigations reveal little evi­dence of the employer misconduct they allege.

Even more misleading is the claim that "illegal firings and other discrimination against workers" occurred 31,358 times in 2005. The number comes from the 2005 annual report of the National Labor Relations Board.[30] The report shows that the NLRB ordered employers to pay that many workers back pay in 2005, but the NLRB awards back pay to resolve many types of disputes, only a few of which involve intimidation or organizing campaigns.

For example, if a company unilaterally changed working conditions by reducing hours to cut costs without first negotiating with the union, the NLRB would order the company to return to the status quo and bargain the changes with the union. The NLRB could also require the company to provide back pay to workers as though the changes never occurred by paying them for the hours that they would have worked had the company not reduced working hours. Asserting that all or even most awards of back pay are due to intimidation, fraud, or illegal firings during organizing campaigns is simply false.

If a company illegally fires a worker for support­ing a union during an election campaign, the NLRB will order it to reinstate that worker in addition to providing back pay. While the numbers of workers reinstated and awarded back pay would be the same if these remedies were due to illegal firings, govern­ment records show that reinstatement is far less common than back pay. The NLRB ordered just 2,008 workers reinstated in 2005, a number that includes workers who were illegally fired for other causes, such as discussing salary with their co-workers.[31] Union activists' claim that employers fired or discriminated against more than 31,000 employees for trying to organize in 2005 reflects either a complete misunderstanding or misrepre­sentation of what the NLRB's data really represent.

No Cure for Illegal Threats. Labor activists claim that employers regularly attempt to intimidate workers by threatening to shut down or move plants if workers unionize and argue that card checks could curtail this intimidation.[32] Union organizers say that employers make such threats in half of all organizing campaigns, although they rarely follow through.[33] But such threats are already illegal and are grounds for setting aside an election.

Card checks would also do nothing to prevent companies from making these threats. Abolishing private elections does not address the problem of employers making empty threats to their workers. Companies can deliver illegal threats just as effec­tively whether employees vote in private or sign up for a union in public. Union activists acknowledge this fact.[34]

Timely Investigation. Union activists agree that workers' legal protections look good on paper, but they claim that it takes so long for the government to investigate violations that these protections are meaningless in practice.[35] The AFL-CIO argues that "in 50 percent of the decisions issued by the NLRB in 2002 in unfair labor practice charge cases, workers waited more than 889 days for the NLRB to reach a decision."[36]

This claim is highly misleading. The National Labor Relations Board is labor law's equivalent of the U.S. Supreme Court. Only 3 percent of labor cases make it to the NLRB, and many of those embody novel legal issues, not the routine enforce­ment of the law.[37] Most cases are either settled by the parties or handled by lower levels of the NLRB bureaucracy.

It takes an NLRB regional director a median of only 95 days, or three months, to investigate an unfair labor practice charge, determine whether it has merit, and file a formal "complaint."[38] Only 13 percent of all cases reach that stage.[39] Fully 87 per­cent are closed before the complaint stage, either dismissed for lack of merit or resolved by settle­ments in which the company makes restitution. Cases that are not dismissed or settled take a median of three months from the filing of the com­plaint to the administrative law judge's decision. Only 5 percent of cases, overall, reach that stage.[40]

Ninety-five percent of all alleged violations of worker rights are settled through procedures that typ­ically take between three to six months. That is no rea­son to take away workers' right to a private vote.

Delays Rare. Unions also allege that, in addition to illegally threatening and firing workers, employ­ers use legal maneuvers to delay holding organizing elections. They claim that companies file baseless objections with the NLRB in order to drag out elec­tion campaigns for months. This, they say, gives employers more time to intimidate their employees and causes workers to lose confidence in the union.[41] Labor activists argue that to prevent inter­minable delays before a vote, the government should replace private ballots with public union cards that would not be subject to delays.

The unions' claims, however, are simply false. The typical organizing election takes place 39 days after union organizers file an election petition. Over 94 percent of organizing elections take place within eight weeks after organizers have filed a petition.[42] Eight weeks is not an unreasonable delay for a deci­sion that demands consideration by workers and that could affect them for years. Congress should not strip workers of their right to a private vote because labor activists think eight weeks is too long to wait for an organizing election.

Rights of Unions and Employers Balanced by Law. Unions claim that employers have an unfair advantage during organizing election campaigns. They argue that the system makes it too difficult for workers to organize, even when employers follow the law, because unions and employers do not have equal access to workers. They point out that man­agement can campaign against unionizing all day long during working hours, while unions may do so only during break times. They say that employees cannot freely choose union membership when they do not get to hear the union case and that card checks would fix this problem.[43]

This argument is also misleading. The law bal­ances the rights of unions and employers during organizing elections to ensure that workers can hear from both sides. Generally, union organizers may not campaign when workers are on company time, but organizers may speak during unpaid time at work, such as breaks, unless the company has a pol­icy prohibiting all solicitation--not just solicitation by unions--on its premises.

In addition, the government requires companies to provide union organizers with a complete and accurate list of all employees' names and addresses within seven days of the NLRB's order to conduct an election. If the company refuses, the NLRB will set aside the election and order a re-vote.[44] Union orga­nizers are free to contact employees at home or by phone to make their case, but employers may not do so.[45] The law guarantees unions the opportunity to make their case to employees--just not when companies pay those employees to work.

The Employee Free Choice Act would in reality make it more difficult for unions to contact workers to make their case. Employees would still spend an average of 40 hours a week at their place of work with or without an election. If organizers did not file for an election, however, employers would have no obligation to provide them with the list of employee names and addresses. Without that list, organizers would have less access to workers to argue in favor of joining a union. If employers truly have unfair access to employees and unions do not have the opportunity to make their case, card check propos­als that would make it harder for union organizers to meet with workers are not the solution.

Card Check Would Not Counter Alleged Abuses. Unions also object to the fact that employ­ers can campaign against organizing and present workers with arguments against joining a union at the workplace. AFL-CIO president John Sweeney complains that employers require "supervisors to shovel anti-union propaganda to the employees whose schedules, evaluations and advancement they control" and force "workers to attend one-sided, anti-union meetings where management can legally fire pro-union workers who speak out."[46] Unions say that card checks would remedy this problem.

If employers' campaigns against unionizing were a serious problem, card-check laws that force work­ers to reveal their preferences in public would not solve it. The First Amendment to the U.S. Constitu­tion guarantees employers the right to present their views to their workers. So long as they avoid threats, employers would still be able to hold "captive audi­ence" meetings and "shovel anti-union propaganda" to their workers just as effectively when ballots are public as they could when they are private.

However, employer campaigns against unioniz­ing benefit workers by informing them of the down­sides of joining a union. Supervisors, for example, often hold group meetings where they inform work­ers of the potential costs of union membership. This may be the only time that workers hear why they might not want to join. Union organizers will not tell workers these things. Unions train organizers to avoid topics like dues increases and strike histories that could persuade workers to reject the union.[47] Employers should provide their workers with the other side of the story. That is how democracy works: Voters make an informed decision in private after both sides make their strongest case.

Few Workers Want to Organize. Union activ­ists contend that the low level of unionization in the United States proves that elections do not reflect workers' free choice. They argue that most Ameri­can workers actually want to join a union. They back this up with polling numbers showing that 53 percent of non-union workers, or 57 million work­ers, would like to belong to a union.[48]

However those numbers are highly suspect. The AFL-CIO commissioned the poll. Peter Hart, a Dem­ocratic pollster, conducted it. The poll itself remains unpublished, and the AFL-CIO has not revealed the questions or polling methodologies used.

Publicly publishedpolls conducted by nonparti­san pollsters show the opposite: Relatively few non-union workers want general representation. Zogby polling shows that, by a margin of more than 3 to 1, non-union workers do not want to belong to a labor union.[49] Because a union must win the support of a majority of a company's workers to win recognition, the fact that relatively few workers belong to a union is not surprising.

Workers Disagree with Union Claims. Labor activists claim to speak for American workers, but workers disagree with the claims unions make on their behalf. Contrary to union claims of wide­spread corporate intimidation, Zogby polling shows that 71 percent of union members believe that the current private-ballot process is fair, versus only 13 percent who disagree. Nor do union members want to lose their right to a private vote. Fully 78 percent of union members favor keeping the cur­rent system over replacing it with one that provides less privacy.[50]

The vast majority of Americans side with union members and not union bosses, believing that workers should have the choice to keep their views on organizing private. Fully 89 percent of Ameri­cans believe that a worker's ultimate choice should be kept private.[51]

XREFIn addition, a large majority of workers also oppose any effort to replace organizing elections with publicly signed cards. A recent McLaughlin poll indicates that 79 percent of Americans oppose card-check legislation that would end private-ballot elections.[52] About 66 percent of union members agree and think that companies should never be allowed to skip private-ballot elections before they recognize a union.[53] The very employees that union activists claim to represent oppose replacing pri­vate-ballot elections with card checks.

The Real Goal: Improving Union Finances. Unions know that private ballots best reveal work­ers' desires and that card-check organizing would not address, and could exacerbate, the alleged shortcomings of private elections. Yet they still favor card checks over private ballots. This is because their real aim is to reverse the labor movement's long-term decline. Unions are harder to sell to workers today than they were in the manufacturing economy of two generations ago. Today's jobs require unique skills and talents that do not lend themselves to general representation. Most workers in the modern economy do not feel that union membership provides benefits worth the 1 percent to 2 percent of their salary that they would have to pay in dues.

Consequently, union membership has fallen steadily since the 1950s, and unions lost another 326,000 members in 2006. Today, just 12 percent of workers belong to unions--less than at any point since Franklin D. Roosevelt's Administration.[54] Fewer members translates into less dues money and increased financial hardship for organized labor.

Unions seek to reverse that trend, and they know that card check allows them to organize workplaces without workers' majority support. Unions want the Employee Free Choice Act because it would make it easier to recruit dues-paying members, not because it would somehow defend workers' right to choose freely to unionize.

Congress Should Protect Private Ballots. A worker's best protection from pressure when decid­ing to join a union is the privacy of the voting booth. Card-check campaigns expose workers to potential intimidation. Even when organizers obey the law, they give workers one-sided sales pitches and press them to commit to the union immedi­ately, without time for reflection or the opportunity to hear both sides.

Workers deserve better. To protect workers' rights and ensure that they can make informed and considered decisions, Congress should prohibit card-check organizing. Congress should stop com­panies from waiving their employees' right to vote by requiring a private-ballot election before a union is certified as the workers' exclusive representative.

The Case Against Binding Arbitration

The Employee Free Choice Act also provides for the use of binding arbitration to resolve bar­gaining impasses. Currently, negotiations on an initial contract following unionization are treated much the same as any other contract: The parties negotiate in good faith until they settle on terms. If they fail to do so, the union may call a strike, and the employer may implement its last offer or even lock out workers.

In a section misleadingly titled "Facilitating Ini­tial Collective Bargaining Agreements," the EFCA provides that after 90 days of bargaining on an ini­tial union contract, either party may request media­tion by the Federal Mediation and Conciliation Service (FMCS). Thirty days later, if the parties are still unable to settle on a contract or agree to extend negotiations, the FMCS:

shall refer the dispute to an arbitration board established in accordance with such regula­tions as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of two years, unless amended during such pe­riod by written consent of the parties.[55]

Arbitration can be a valuable method for resolv­ing disputes and is frequently used in labor rela­tions. Both management and labor have found it useful to bring in a trusted third party to evaluate grievances that might arise under an existing con­tract, a process that allows them to avoid the costs and delays of litigation. In this sense, arbitration is a valuable alternative to the court system.

Given the disruption and even violence that can accompany strikes, it may seem attractive to avoid them by having a neutral third party step in and determine the wages and other terms of employ­ment when unions and employers fail to reach an agreement. This process is referred to as "binding arbitration," and many states use it to resolve bar­gaining impasses involving public employees who are not allowed to go on strike.

But unlike other situations in which arbitration works well, in binding arbitration, the arbitrator does not simply take the place of a judge in a court­room. Instead of applying the law or the terms of an existing agreement to settle a dispute, the arbitrator has the task of figuring out what a fair agreement should look like. This is a much more difficult and risky process and one that unions and management seldom agree to on their own.[56]

While the EFCA purports to "facilitat[e] Initial Collective Bargaining Agreements," it does the opposite, leaving both parties subject to the deci­sions of an arbitration panel that one side or both sides may not want rather than encouraging them to arrive at a mutually satisfactory contract. In place of an agreement, the EFCA would impose the edu­cated guess of a government-appointed arbitrator, leaving management and workers to deal with the consequences.

Binding Arbitration's Bad Record. The EFCA says little about the specific process of binding arbi­tration, leaving it to the FMCS to determine how an arbitration panel will be chosen, what sort of evi­dence it will consider and when, and what process it will use to make a decision. The state of Michigan uses binding arbitration to resolve bargaining impasses involving public safety workers, such as police officers, firefighters, and emergency medical technicians employed by county and municipal governments. The process in Michigan is fairly typ­ical, and the experience of this state is a reasonable guide to the risks involved in binding arbitration.

When negotiations break down to the point that binding arbitration is needed, Michigan law calls for a three-member panel to determine wages and other terms of employment. The government employer and union each appoint a panelist, while the third, a neutral arbitrator who serves as chairman, is chosen from a list provided by the state.[57] Because the members appointed by the union and the employer can be counted on to support their own sides, the binding arbitration process ultimately hinges on the opinions of this neutral member.

Under the Michigan statute, binding arbitration is supposed to go quickly. Assembling the arbitra­tion panel should take less than three weeks. Once the panel is named, the first hearing should be held within 15 days, and hearings are supposed to be wrapped up 30 days after they commence.[58]

In reality, the process takes much longer. In the early 1990s, only one out of every six binding arbi­tration cases was resolved within 300 days of a peti­tion's being filed. The pace of arbitration has improved since then, but not by much.[59] A review of 29 binding arbitration cases resolved in 2005 and 2006 showed that only seven--fewer than one out of four--were resolved within 300 days. On aver­age, binding arbitration takes almost 15 months from the date that a request is filed to the date that a decision is reached.[60]

Unaccountable Arbitrators. The Employee Free Choice Act would put control of wages and working conditions in the hands of unaccountable govern­ment officials. Arbitrators do not have to live with the consequences of their decisions. Michigan law lists a number of criteria that the panel is to consider in making a decision, such as the ability of the gov­ernment employer to pay, comparisons with similar communities, trends in private-sector employment, and the local cost of living. Nonetheless, in the end, the process is very arbitrary; there is no step-by-step analysis that an arbitrator should go through. Arbi­trators decide what weights to put on these factors with virtually no risk that their rulings will be over­turned by the courts.

An ill-conceived arbitrator's award can have severe consequences for both communities and employees. For instance, an arbitrator's 1978 deci­sion to award Detroit police a cost-of-living allow­ance--an expensive item given the high inflation of the late 1970s--threw a precarious city budget out of balance. After the state courts refused to overturn the award, the city was forced to lay off 20 percent of its police force. Crime rates, which had been declining, increased dramatically. Even those offic­ers who kept their jobs paid a price; in 1981, the city and the police union agreed to a wage freeze.[61]

Unlike a local government, a business cannot raise taxes or turn to a higher level of government for financial assistance if an arbitrator's decision goes against it. Competition in the free market means that if an arbitrator miscalculates and raises wages too high, a company cannot raise its prices to compensate for the decision without the risk of los­ing customers. An ill-advised arbitrator's ruling can easily lead to financial difficulty and layoffs. Yet arbitrators face no penalty if a miscalculation sends a company into bankruptcy or cheats workers out of a wage increase they would have earned. Unlike binding arbitration, with collective bargaining, both sides have a stake in making the final agree­ment work.

Stifling Competitiveness and Innovation. As damaging as an ill-advised arbitrator's decision might be for a local government, binding arbitration does even greater damage in the private sector by stifling competitiveness and innovation.

Unlike the typical arbitrator's decision in govern­ment, the EFCA would apply only to the initial negotiations after a union is recognized. This means that the arbitrator would not be able to look to prior collective bargaining agreements for guidance.

Without prior agreements to use as a baseline, a conscientious arbitrator will be more likely to base his or her decision on the practices of comparable companies, but this has drawbacks too. A company with its own distinctive business model could be forced to adopt the practices of its competitors, forc­ing it to give up its unique approach to its business and give up its competitive advantages.

If the binding arbitration process turns out to be a slow one, as it often is in Michigan government, busi­ness owners will be forced to prepare for retroactive back-pay awards while they wait for overdue deci­sions. This ties up funds that cannot be used to invest in new equipment, and these funds cannot be offered as incentives to lure new workers because back-pay awards go exclusively to the existing workforce.

Extreme Demands. Binding arbitration can affect the entire bargaining process. It is a common practice for both employers and unions in Michigan to make extreme proposals during bargaining with an eye toward the possibility of arbitration. The arbitrator may know little about how a specific cor­poration stays competitive and may not have the experience necessary to discern which demands are so extreme that they would not be agreed to in col­lective bargaining.

This complicates collective bargaining, as negoti­ators must agree to set aside these demands before they can get to negotiating on more realistic provi­sions. If negotiations break down and an arbitrator is brought in, the arbitrator might not be able to see through the posturing and could include these demands as part of his or her decision. The arbitra­tor could force companies to:

* Participate in multi-employer union pension plans, many of which are now underfunded;
* Guarantee no layoffs irrespective of worker pro­ductivity; and
* Adopt uncompetitive work rules and production quotas.

These policies would cripple the competitiveness of American firms. In addition, binding arbitration is not without drawbacks for workers. Because of the way that binding arbitration fits in the overall scheme of the National Labor Relations Act, the arbitration process is likely to make unions less accountable to those whom it is supposed to repre­sent and protect.

Stuck with an Unwanted Union. Binding arbi­tration could leave workers stuck with a union that they do not want, such as one that failed them by not accepting a better offer from management when it had the chance or by putting on a poor presenta­tion in front of the arbitration panel. Workers would then be stuck paying union dues out of their disap­pointing wages.

The National Labor Relations Act (NLRA) does provide for the removal of a union that has lost worker support. The process is similar to that used to bring a union in today. When opponents collect sig­natures from 30 percent of their co-workers, they can petition for a decertification vote. The same rules apply if workers want to bring in a different union. Employees who have a problem with the union can­not just go out and start collecting signatures, how­ever. They must wait until the law presents them with an opening. The EFCA and decisions of the NLRB have created several "bars" to decertification.

First, there is the certification bar. After a union is recognized, workers must wait a full year before they have an opportunity to vote to remove the union or bring in another one. During this time, the union has its opportunity to negotiate its first contract. Then comes the contract bar. Once a col­lective bargaining agreement is reached, a decerti­fication election may not be held while that contract is in place, for up to three years.[62] There is no provision in the EFCA that would prevent the NLRB from treating an arbitrator's ruling as a contract and barring decertification petitions while one is in effect.

Workers Lose All Say. Still, the current law does allow workers to remove a union if negotiations drag on too long, and depending on the rules of the union, workers can vote down a contract if they are not satisfied with its terms. Workers also have the right to honor a strike or to refrain from striking, as they think best, if the union calls for its members to cease working. All of these rights serve to give work­ers some degree of autonomy and some control over the union and in the workplace.

With binding arbitration in place, however, these rights are likely to be gone or rendered moot. The EFCA does not provide for workers to termi­nate the binding arbitration process. No matter how long arbitration drags on, the workers will remain stuck with it. Once an arbitrator is called in, his or her word will be final, so a vote to reject the contract is out of the question. With a mediator-imposed contract, workers would lose all say in the workplace. They could not even ask their supervi­sors for a raise for good performance beyond what the contract allowed. And in states that do not have right-to-work protections, the arbitrator's ruling is almost guaranteed to have a forced-dues provision, because forced dues are relatively common in col­lective bargaining agreements, and arbitrators are likely to follow this widespread precedent.

Since the EFCA also makes card-check certifica­tion mandatory, it would create a system in which union officials can finagle or bully approval from workers who do not really want them there, and those workers would be obliged to wait several years, and pay union dues for two years, before hav­ing any chance to get rid of the unwanted union. Such a state of affairs would make a mockery of one of the basic premises of American labor law: The will of the majority of workers should determine whether or not a union will represent them.

The Case Against Differential Treatment

The third and final component of the Employee Free Choice Act has received the least attention. Section 4 dramatically increases the penalties against employers for unfair labor practices con­ducted during an organizing drive and requires the NLRB to prioritize investigation of those cases.

Currently, when an employer illegally discrimi­nates against a worker for supporting a union dur­ing an organizing campaign, the law requires the employer to provide that worker full back pay. The EFCA would require the employer to provide triple back pay and would add a civil penalty of up to $20,000 for most unfair labor practices committed by employers during organizing drives. It would also require the NLRB to give preliminary investiga­tion of those unfair labor practices "priority over all other cases." The EFCA would not, however, increase penalties for unfair labor practices commit­ted by unions against either workers or businesses.

Misrepresenting the Problem of Union Coer­cion. Union supporters contend that this differen­tial treatment is justified because unions almost never intimidate or coerce workers during organiz­ing campaigns. Nancy Schiffer, AFL-CIO Associate General Counsel, presents the unions' case:

Is coercion in the signing of authorizations a legitimate concern? A recent review of 113 cases cited by the HR Policy Associa­tion as "involving" fraud and coercion iden­tified only 42 decisions since the Act's inception that actually found coercion, fraud or misrepresentation in the signing of union authorization forms. That's less than one case per year.[63]

This misrepresents the HR Policy Association's findings to paint a completely false picture of union coercion. In a policy brief on the EFCA, the associa­tion included a list of 113 NLRB decisions involving "union deception and/or coercion in obtaining authorization card signatures."[64] Union activists examined those cases closely and found that only 42 of those 113 NLRB cases directly concerned those issues, but that does not mean that there have been only 42 cases of union coercion over the past 60 years. It means only that the National Labor Rela­tions Board has decided 42 cases concerning forgery or intimidation in the obtaining of union cards dur­ing that time. These are two different things.

As described above, the NLRB is labor law's equivalent of the Supreme Court and hears only a small proportion of labor cases. The union argument makes as much sense as examining 60 years of Supreme Court rulings, finding 42 that involved arson, and then claiming that there had been only 42 cases of arson in the United States during that time.

Union Coercion a Real Problem. In fact, union coercion and intimidation are not as rare as labor activists contend. Thousands of unfair labor prac­tices cases have been filed against unions since 2000, including 1,417 for coercive statements, 416 for violence and assaults, 546 for harassment, and 1,325 for threatening statements.[65] Many of these cases did not involve election campaigns, and the unions were not found guilty in every case, but these numbers show that workers have a real prob­lem with union intimidation.

Workers have a right to decide whether to join a union without being subjected to coercion or pres­sure. Threats and intimidation from either employ­ers or unions are equally repugnant. By increasing penalties against only employers, the EFCA sends the message that union threats are less of an injus­tice than employer threats. Prioritizing cases of employer discrimination forces workers who face union intimidation to wait longer for justice.

The law should not make this distinction. A worker assaulted by union members for refusing to sign a union card has been subjected to no less an injustice done than has a worker fired by his employer for signing a union card. If Congress believes stiffer labor law penalties are needed, those higher penalties should apply equally to employers and to unions. Cases of union violence and employer intimidation should also have equal priority.

Conclusion

The Employee Free Choice Act would strip American workers of their right to a private-ballot vote, require companies to submit to binding arbitration, and increase penalties for unfair labor practices committed by employers but not by unions. Each of these provisions would be bad for American workers.

Congress should instead protect the privacy of American workers and guarantee their right to vote in an election before joining a union. Congress should also guarantee every worker the opportunity to hear arguments from both sides and time to reflect before voting.

Replacing organizing elections with public card checks is a move in the wrong direction. Card checks expose workers to threats and intimidation from unions and employers. Even when organiz­ers obey the law, card checks still leave workers vulnerable to peer pressure and harassment. Organizers know who has and has not signed, so they repeatedly return to pressure holdouts to change their minds. They give workers a high-pressure sales pitch that only presents the union side and press them to commit immediately with­out time for reflection. Cards signed under these circumstances do not accurately reflect an employee's true intentions--a fact that unions pri­vately acknowledge.

In contrast, NLRB elections balance the rights of both employers and unions and ensure that work­ers have the chance to hear both sides and reflect on their decision before voting. Contrary to union rhetoric, most companies obey the law during organizing elections, and the NLRB promptly rem­edies illegal discrimination against workers who want to organize.

Even if this were not the case, however, publicly revealing workers' voting preferences would not remedy any of the abuses that unions allege. Unsur­prisingly, most workers say that the current election system is fair and oppose losing their right to vote. Congress should listen to American workers and decline to abolish the government-supervised orga­nizing election system.

Congress should also protect the right of workers and employers to bargain freely. Binding arbitration means that unaccountable and unknowledgeable government bureaucrats would impose employ­ment contracts on newly organized companies. Workers would not have the option of voting down the contract, and companies would have no recourse if an arbitrator imposed uncompetitive terms that would drive it into bankruptcy. Congress should not let the government impose wage con­trols throughout the economy.

The Employee Free Choice Act does not do what its sponsors contend that it would do. In reality, it strips workers of their rights and their privacy while exposing them to abuse and intimi­dation and taking away their ability to bargain with their employers.