Jim Fisher, Labor Relations Specialist*
If passed, a key provision of the Employee Free Choice Act, (EFCA), a bill winding its way through Congress, will substantially change how union recognition is accorded in the private sector, and may ultimately portend changes to federal sector union representation election procedures.
In short, the bill would require employers to recognize employee-signed union representation cards as majority evidence that they wish to be represented by the union, without a secret ballot election, which is the current norm.
I worked for several years as a Field Examiner for the National Labor Relations Board (NLRB), before taking a Labor Relations Specialist position in the federal sector. NLRB regulates labor management relations in the private sector. One of my duties was to conduct secret ballot elections to determine union representation.
In my experience conducting elections, voter turnout was typically high. Employees would enter a four-sided, curtained, voting booth provided by the NLRB, close the curtain behind them, cast their ballot, and drop it in the ballot box. Ballots did not identify the voter, and employees could vote "yes" or "no" on union representation. Voters were insulated from any coercion or intimidation inside the booth.
Coercive activity anywhere near the polling place was strictly prohibited, and the entire process was closely monitored and controlled by the NLRB Examiner. I observed that unions won those elections more often than not. Employee free choice was well protected under the secret ballot procedures. What could be more fair or democratic?
The Employee Free Choice Act (a misnomer) would change all that and dismantle a secret ballot system which has protected employee rights for decades. The act would allow unions to bypass the secret ballot election conducted by a neutral federal agency in favor of simply getting 51 percent of the employees to sign a card stating they want to be represented by the union. There would be no opportunity to vote "no" on union representation.
The vote getting process would be placed squarely in the hands of the union, which has a stake in the outcome, rather than with a neutral government agency that has no stake in the outcome. There would be little to no oversight over the process of how these signatures are obtained.
The Washington Post, 6/29/09, reported that Secretary of Labor Hilda Solis said the act will "level the playing field."
In my view it will tilt the playing field toward unions at the expense of employee free choice. Secretary Solis stated that under the current system employees have been "harassed and intimidated" by employers. In any instance where this occurs, the NLRB unfair labor practice procedures are available. The NLRB has the authority to invalidate an election, or issue a bargaining order without an election, where pervasive unfair tactics are used.
It would be naive to believe that some unions will not engage in high pressure tactics to get card signatures; like visiting employee’s homes, calling them on the telephone, and approaching them on their way to work to persuade them to sign union cards.
Some employees will consider such contacts to be unwelcome. Some employees will sign cards just to get the union off their backs. Employee anonymity will suffer since their signatures will be on the cards, unlike the secret ballot election where no one knows how they voted. Accordingly, employee "free choice" would actually suffer under the EFCA’s card signing provision.
Will card signing be a quicker process? Undoubtedly yes, but at the expense of employee choice.
Whether the provisions of this act will ultimately be proposed for the federal sector, where the playing field is already pretty level, remains to be seen. (Consider that in the federal sector, unlike the private sector, management is prohibited from campaigning against a union’s representation efforts).
This act, if passed, will certainly help unions achieve recognition, but to call it "employee free choice" is misleading.
Employees signing cards at the request of union organizers, in their presence, will not be exercising their choice "free" of coercion or persuasion, unlike in the NLRB voting booth where votes are cast secretly.
In summary, the decades long secret ballot process works well, and the proposed change is not what it’s purported to be.
*Jim Fisher has over 35 years experience working as a labor relations specialist for several federal government agencies, and spent several years as a Field Examiner in the National Labor Relations Board dealing in private sector labor relations.