Employee Free Choice Act: Candidate Obama’s Achilles Heel?

A drastic decline in union members in the private sector and a dramatically pro-union, anti-business House bill endorsed by Senator Obama may mean that labor relations takes a front seat along with the Iraq War and the economy in the upcoming election. On this issue, the candidates are diametrically opposed. Will backing a strong pro-union law affect a candidate whose slogan is “organize for change” positively or negatively when so many consider unions a vestige of antiquated thinking? You decide.

The U.S. House of Representatives passed the Employee Free Choice Act of 2007 (and send it to the Senate where it lacks the votes, at least in the 110th Congress to avoid cloture. There’s a lot of noise on both sides of the aisle and campaign on this issue, so what’s the fuss?

The fuss is that there is growing angst among business owners and executives that an Obama administration might not only get it through the Senate but that the presidential hopeful has already promised to sign it. Why are they so upset?

For the first time since 1947, there’s a real chance the National Labor Relations Act will be amended to increase union organizing rights and set harsher penalties for employer conduct seeking to dissuade employees from organizing.  Why would Congress want to pass such a law?

According to the Bureau of Labor Statistics for 2007:

Union members accounted for 12.1 percent of employed wage and salary workers, essentially unchanged from 12.0 percent in 2006. In 1983, the first year for which comparable union data are available, the union membership rate was 20.1 percent.

So, in 24 years, union membership has dropped 40%. That’s usually good news for Republicans and bad news for Democrats.  Associated Press, the business-labor split in PAC, soft-money and individual donations to candidates and parties in 2000 went as follows:

  • Business: $1.23 billion; 42 percent Democrats, 57 percent GOP, 1 percent other
  • Labor: $90.08 million; 94 percent Democrats, 6 percent GOP

If business switches its support more to Republicans, the Democrat’s coffers could suffer dramatically.

What the Act Does

There are three key components of the statute;

    Streamlining Union Certification

    Facilitation of collective bargaining agreements.

    Strengthening enforcement.

A reading of the bill passed by the House, finds some interesting euphemisms in these section titles.

Streamlining Union Certification Appears to Translate to Certification Based on Interest Cards Not a Secret Ballot Election

This is the simplest provision to understand. Instead of certification of a union to represent employees by a secret ballot overseen by the National Labor Relations Board, the Board will certify a union based on interest cards submitted by the union. If a majority of employees sign interest cards, the union is certified as the representative.  Under the prospective law, the NLRB will develop "guidelines and procedures" to govern certain contract language by which the union will be identified and to "establish the validity of signed authorizations designating bargaining representatives".

According to unions supporting the bill, the law will balance employer pressure tactics opposing unionization. Nowhere in the law is there any mention of a tactic I saw over and over in the Federal sector in which union representatives pressured employees to join.

Facilitation of Collective Bargaining Agreements Appears to Mean Forced Negotiation, Mediation, Arbitration and the End of Strikes

Once a union is certified under the bill, the following come into effect:

    Unless agreed otherwise, companies must go to the bargaining table within 10 days of a request by the union and "make every reasonable effort to conclude and sign a collective bargaining agreement".

    If no agreement is reached within 90 days, the union may contact the Federal Mediation and Conciliation Service and request mediation.

    If no agreement is reached within 30 days of the original request for mediation, FMCS 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 2 years, unless amended during such period by written consent of the parties.

The bill gives FMCS more authority than it has ever had in its 60+ year history. According to the bill, the parties would not choose an arbitrator but have the "panel" imposed by FMCS.Apparently, strikes were too painful to unions so the Congress has decided to end them. Next to ending strikes, the most significant aspect of the bill may be its effect on perceptions of FMCS’ "neutrality".

 Strengthening Enforcement Appears to Mean Punitive Remedies in ULP Cases

This provision provides that an employer found to have committed an unfair labor practice during a union organizing drive will: 

  1. If the remedy involves back pay, pay three times the actual pay lost; and,
  2. If the violation is willful, pay $20,000.00 per occurrence.

Treble damages are usually intended to punish the guilty party and discourage others from similar behavior.

Political Fallout

Presidential Candidate John McCain co-sponsored an opposition bill, The Secret Ballot Protection Act which, in the current Senate, got nowhere.

Unorganized companies and not only Wal-Mart are likely to strongly voice their disapproval for this legislation where it counts, in political contributions. In 1935, Sen. Wagner, the sponsor of the National Labor Relates Act is alleged to have approached then President Franklin D. Roosevelt about the inclusion of Federal employees in its coverage. Roosevelt‘s exact response is unreported but perhaps summed up by the axiom that "unions are always best for someone else’s employees."

In the labor section of his campaign website is the following quote:

"We’re ready to take the offense for organized labor. It’s time we have a President who didn’t choke saying the word ‘union.’ We need to strengthen our unions by letting them do what they do best — organize our workers. If a majority of workers want a union, they should get a union. It’s that simple. We need to stand up to the business lobby that’s been getting their friends in Congress and in the White House to block card check. That’s why I was one of the leaders fighting to pass the Employee Free Choice Act. That’s why I’m fighting for it in the Senate. And that’s why we’ll make it the law of the land when I’m President." Barack Obama, Dubuque, IA, November 13, 2007

If you owned a business, who would you give your money to?

Any opinion construed from the above, even if imaginary on the part of the reader, is solely that of the author.


About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.