Employee Free Choice Act Is Coercive Even Without Card Check

Miller and Harkin support EFCAThe Employee Free Choice Act (EFCA), as Union Corruption Update has noted repeatedly, is a misnamed piece of federal legislation. Its sole ulterior purpose is an expansion of union power at the expense of dissenting employees and employers. And despite the fact that supporters appear willing to strip the measure of its highly controversial “card check” component, the bill (H.R. 1409, S. 560) remains coercive in intent. That’s because its less-heralded binding arbitration provision remains. And arbitration, as supporters envision things, would authorize the federal government to write (or rewrite) employment contracts from scratch. Rep. George Miller, D-Calif., and Sen. Tom Harkin, D-Iowa, are the bill’s leading advocates in Congress. They and Democratic allies are determined to deliver the goods for organized labor in this, an eleventh-hour push.

“Card check” is a practice that unions have employed for decades as a way of gauging support from nonunion workers for a representation election. Organizers go to an affected workplace and in some cases to workers’ residences, asking them to sign a card indicating a desire to join. A worker’s signature in no way is a formal commitment to vote for representation later on. But typically if a union gets at least 70 percent of workers to sign, it is confident they have the strength to win a secret-ballot election. Under current law, a card-check campaign must reach a 30 percent threshold of signatures in order to trigger a National Labor Relations Board (NLRB)-supervised election. And if a card check campaign can secure signatures from at least 50 percent of all workers, an employer may recognize the union as the sole collective bargaining agent, but does not have to. What EFCA would do is force an employer to accept a card check as binding if a simple majority of workers sign. What’s more, the measure would require employer neutrality during a card check. That is, management may not offer counter-arguments of its own, even if the union appears to be applying strong-arm tactics.

Unions like card checks because they work. National Labor Relations Board data shows that during this decade unions have won roughly 60 percent of secret-ballot elections over first-time representation, a figure that exceeded 65 percent in 2008. That’s a pretty good track record. But it’s not quite as good as the card check process, in which unions have won about 80 percent of the time. One possible reason for the higher success rate is that unions have more opportunity to apply undue pressure, if not harassment, in persuading undeclared workers to sign. Common sense dictates that under EFCA, the closer union organizers get to that magic 50 percent threshold, the more they will be emboldened to bully workers who say (or might say) “no.” Opponents of the Employee Free Choice Act are fully aware of this dynamic. And the more they convey their concern to the public, and especially to moderate Democrats, the greater their chances of stopping this legislation – as they had done through Senate filibuster a little over two years ago.

It takes a three-fifths vote to invoke cloture of a Senate bill; i.e., override a filibuster. In 2007, lawmakers, along party lines, voted 51-48 to invoke cloture. This time around, the Democrats hold a 58-40 majority over the Republicans, and enjoy the support of two pro-union Independents in Bernie Sanders (Vt.) and Joe Lieberman (Conn.). Yet even that might not be enough. Democratic Senators Ted Kennedy (Mass.) and Robert Byrd (W.V.) are ailing, and are unlikely to show up to cast a vote. And Republican resistance has hardened in recent months. Union leaders such as the Service Employees’ Andrew Stern are grim over the bill’s chances for success in present form. Certain Democratic Senators, if out of fear of a filibuster more than out of principle, have defected. Last week, six of them agreed to drop EFCA’s card check provisions while retaining the section on binding arbitration. Joining Harkin were Sherrod Brown (Ohio), Blanche Lincoln (Ark.), Mark Pryor (Ark.), Charles Schumer (N.Y.) and Arlen Specter (Pa.). Specter, who this past spring switched parties from GOP to Democrat and who has been lobbied heavily by both sides, remarked, “I cannot remember an issue this emotional in all my years in the Senate.”

But this compromise in no way ought to lull opponents into thinking the measure is consistent with workplace liberty. As one AFL-CIO official, insisting on anonymity, explained to the New York Times: “This bill will bring about dramatic changes, even if card check has fallen away.” Unfortunately, he’s right. The Employee Free Choice Act would authorize a arbitrator from the Federal Mediation and Conciliation Service to force a settlement if management and the newly-certified union at a given work site aren’t able to come to terms after 90 days of bargaining and 30 days of mediation. The arbitration panel would face no time deadlines or duty to issue an accompanying opinion after the 120 days are up. It would dictate all terms of a contract, from wages to work schedules to vacation time to health benefits. And decisions would be final, not subject to appeal. The FMCS thus would have powers unimagined by its creators in 1947 as part of the Taft-Hartley Act. A new paper authored by attorney F. Vincent Vernuccio and published by the Competitive Enterprise Institute, “A Primer on the Employee Free Choice Act’s Arbitration Provision,” explains the full implications of the bill’s arbitration provisions. And University of Chicago law professor Richard Epstein views this arbitration portion, like the card check portion, as unconstitutional, as it affords no measure of employer self-protection.

Even with the card-check component off the table, the revised measure would give union organizers the upper hand. One proposal, for example, would limit the time available for a ballot vote to either five or 10 days if at least 30 percent of all workers had signed a card indicating their desire to join. The current median time is 38 days. The move isn’t hard to explain. The less time a reluctant employer and employees have to consider union representation, the less likely they will be to learn about the drawbacks. Unions are adamant about imposing “neutrality” agreements upon management, preventing the employer from holding meetings or distributing literature to explain its position.

The Employee Free Choice Act is not about expanding worker rights. The National Labor Relations Act from the start has barred employers from threatening employees with termination or other forms of retaliation for attempting to form or join a union. EFCA is about ramping up private-sector union membership, which in recent years has been stuck at around 7.5 percent of the U.S. work force. The leaders of the opposition, Rep. Eric Cantor, R-Va., and Sen. John Thune, R-S.D., have made clear the future of this country is at stake. “I want to be very clear on this point,” noted Sen. Thune recently. “There cannot be a compromise when it comes to card check and mandatory arbitration. The stakes are simply too high for workers, for small businesses, and for our economic recovery.” Hopefully, enough his colleagues will recognize as much when the measure is put to a full-floor vote this fall.