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75% Have an Opinion on the EFCA

By Michael W. Fox, Esq.

Mark Ambinder of Atlantic has an interesting posting on two different polls, one of which garners 75% in favor of the Employee Free Choice Act, the other 74% against it. Poll v. Poll: How Each Side Describes "Card Check." The difference, as any student of polling knows, is how you ask the question. To get different results you either describe the EFCA as:

"[a]llows employees to have a union once a majority of employees in a workplace sign authorization cards indicating they want to form a union."

or, describe it this way

"would effectively replace a federally supervised secret ballot election with a process that requires a majority of workers to simply sign a card to authorize organizing a union and the workers' signatures would be made public to their employer, the union organizers and their co-workers. "

Ambinder goes on give his description of what the EFCA does:

Now -- EFCA doesn't eliminate secret ballot elections. Since the National Labor Relations Act was passed, there have always been two ways to join a union, either through "card check" or a ballot election. Current law allows companies to force an election, even if a majority of workers have signed up. In effect, EFCA switches the choice to the workers; they can choose whether to hold a card check election or whether they want a regular secret ballot election. Effectively, EFCA would increase the frequency of card check elections, which are easier for unions to win. (emphasis added)

Unfortunately, he has taking a union talking point that is being widely circulated that is technically true, but like the name of the bill, in actuality misleading.

It is technically true that under the EFCA as now drafted, if between 30 and 50% of employees sign authorization cards, a secret ballot election is the method in which a union is determined. The reality is that unions almost never file a petition for an election unless they have 60 or 70% of authorization cards.

The reason: unions know that they have hit their high water mark in support at the filing of the petition. Once a campaign is undertaken, in which both management and the union present their views, the unions lose support. If the EFCA is adopted, not only will there be no secret ballot in almost every case, but just as importantly, there will be no opportunity for a campaign where both sides -- the pro's and con's -- of having a union in that particular workplace can be articulated.

In this age of new politics, it would be nice if both sides on this controversial and very significant issue, make their points based on reality not deception. Ironically the use of the true but misleading statement points out a fundamental flaw of the premise of the bill. If the union supporters of the legislation rely on statements that are technically true, but still misleading, what might they say to an individual employee to get him or her to sign an authorization card? And wouldn't the assurance of a campaign where both sides are presented, followed by a secret election, be the perfect antidote for such behavior?

Certainly unions are not the only ones that are guilty of misinformation in union campaigns, nor in all likelihood the fight over whether the EFCA will pass. Perhaps it is too much, even in a week where Americans are more optimistic than they have been in long time about the tenor of our future politics, to ask that both sides voice the real arguments in support of their positions, not rely on rhetoric that may be true, but misleading. It is no doubt naive, but it would certainly be nice.

And of course, this post only addresses one of three significant areas of change that would be brought about by the EFCA. A second, binding interest arbitration to ensure an initial agreement, is a fundamental restructuring of one the premises of existing labor law . That's a subject for a different post, but it would at least be nice to think that before such a fundamental change is made, it at least be openly debated.

Full post as published by Jottings By An Employer's Lawyer on January 23, 2009 (boomark / email).