Revised and updated March 4, 2009
Organized Labor has made the Employee Free Choice Act (EFCA) its
top legislative priority. The act would replace the current system
of secret-ballot organizing elections with card checks, in which
workers publicly sign union cards to organize and join a union. It
would also impose binding arbitration for the initial
bargaining agreement after organization and increase the penalties
for unfair Labor practices committed by employers-but not
unions-during organizing drives. Each of these provisions would
harm American workers.
Stifling Free Choice. Under the EFCA, once organizers
collect signed cards from a majority of a company's employees, all
of the company's workers would be forced to join the union without
a vote. This strips workers of both their fundamental right to vote
and their privacy. Both the union and the employer would know
exactly which workers want to join the union, leaving workers
vulnerable to threats and intimidation.
Even when organizers obey the law, card check allows union
organizers to push workers to commit to joining a union immediately
after hearing their one-sided sales pitch without either a chance
to hear the arguments from the other side or time for reflection.
When workers decline to sign the union card on the spot, union
organizers return again and again to pressure these holdouts to
change their minds. Privately, unions acknowledge that union cards
signed under these circumstances do not accurately reflect workers'
desire to join a union.
Contrary to union rhetoric, organizing elections are fair and do
protect the rights of workers. If anything they favor union
organizers, which is why unions win 60 percent of organizing
elections. Government data show that employers rarely fire
union supporters-in just 2.7 percent of election campaigns-and
most alleged violations are investigated and processed in a
few months. Today's election procedures balance the rights of
employers and unions and ensure that unions have access to workers
when they are not on company time.
Workers themselves disagree with the union activists who claim
to speak for them. A large majority of union members agree that
secret-ballot elections are fair and should not be replaced with
card check. Most other Americans also agree. Congress should
not change a system that most workers support.
Reducing Accountability. The EFCA's second component
would force employers and newly organized unions into binding
arbitration if they were unable to settle on a collective
bargaining agreement within 90 days from the start of bargaining.
This provision would force private firms into a risky process
that works poorly in the public sector. In states like Michigan
that use binding arbitration, it takes an average of 15 months for
arbitrators to make a ruling.
Binding arbitration places control of wages and employment
conditions in the hands of unaccountable government officials.
Arbitrators have little knowledge of the competitive realities that
firms face and no expertise in crafting the business contracts
on which workers and employers rely. An arbitrator's ruling would
be final, and the arbitrator would not have to live with the
consequences of the ruling. Workers could not appeal a decision
that gave them too little pay or one that would bankrupt the firm.
Government-imposed contracts would also stifle corporate
competitiveness and innovation.
Ignoring Union Abuses. The EFCA's final section
would increase penalties on employers, but not unions, that engage
in unfair Labor practices during organizing drives. Labor activists
argue that unions almost never abuse workers during organizing
drives, so there is no need to increase penalties for union abuses.
But they misrepresent the facts to reach this conclusion. In fact,
unions have been charged with making threats, violence, coercion,
and intimidation thousands of times since 2000.
These new penalties would apply not just to cases of illegal
firings but to many actions that the government prohibits but
appear innocuous, such as asking workers what they would like to
see changed at their workplace. Employers without experience with
organizing campaigns will be at risk of committing multiple
unintentional violations and racking up steep fines. This will
have a chilling impact on employer speech, intimidating them into
staying silent during an organizing campaign. Consequently,
employees will be deprived of the information they need to make an
informed choice about union representation.
James Sherk is the Bradley
Fellow in Labor Policy in the Center for Data Analysis at The
Heritage Foundation, and Paul Kersey is Senior Labor Policy Analyst
at the Mackinac Center for Public Policy in Midland, Michigan.