In this election year, the airwaves are full of discussions concerning candidates. You cannot get through a television show without numerous commercials as to why one candidate is better suited for an office than the competitor.
There is no doubt that voting and the campaign process is as American as apple pie.
When employees sit down and decide whether they wish to be represented by a union at work, the National Labor Relations Act also provides for a campaign culminating in a vote. And when provided with an opportunity to cast a secret ballot, more and more employees opt not to have a union.
Many are unaware of a union-supported statutory scheme aimed at changing the ground rules for how employees decide whether to unionize. Under the proposed Employee Free Choice Act, unions can bypass the voting process and enter the workforce by simply having the majority of employees sign “authorization cards” indicating a preference for a union.
Once this happens, a union can ask an arbitrator to step in and dictate the terms of a contract if the parties do not reach one within 90 days.
What’s the difference?
First, the EFCA does away with the campaign and resulting secret ballot. The opportunity for the employee to go into a ballot booth and vote in private is replaced by a process in which union agents lobby individuals – often off-site and in secret, often in settings with pizza, beer and peer pressure — to influence them to sign authorization cards.
Second, employers lose the ability to control the terms, conditions and costs of running a business. If the union delays agreement for 90 days, an arbitrator decides what goes into the contract.
This is a little like deciding which political candidate wins based on polling rather than voting, and also substitutes private judges (arbitrators) for party negotiations to decide the terms of a labor contract.
Why the proposed change? Different organizations will quote different figures, but unions currently win a little more than half of the contested elections. In short, employees vote to do without a union about half of the time.
For years, the statistics have shown a steady decline in unions and in 2007, union membership dropped to 7.5 percent in the private sector and 35.9 percent in the public sector. Currently, signing authorization cards gets the election, not the union.
The unions want this changed so they can “win” representation without risking an election loss.
What is the status of the EFCA? It was introduced as H.R. 800 in early 2007 and shortly passed by the U.S. House of Representatives. It was then presented to the Senate as S. 1041, with 46 co-sponsors. However, the measure failed to pass in the Senate due to a Republican filibuster. Nonetheless, unions have made it crystal clear that they intend to aggressively push the EFCA again, especially if a Democrat is elected president.
Regardless of the topic, the right to vote in a union election is extremely important – it should not be taken lightly. Everyone should seriously question the EFCA and anything else that removes the secret ballot election process from union representation issues.
Clarence Belnavis lives in Vancouver and is managing partner at the Portland office of Fisher & Phillips LLP, one of the oldest and largest firms in the country dedicated to representing the interests of management.
