Viewpoint -- Employee Free Choice Act Puts A Target On The Back Of Manufacturers

Senator Kennedy (D-Mass.) has proposed a bill that, if passed, will do more damage to manufacturing companies than any other labor relations legislation in the last fifty years. His proposed legislation is known as the "Employee Free Choice Act," which would require that all employers recognize a union when a majority of a company's employees sign union authorization cards in the presence of union organizers. This proposed legislation would eliminate secret ballot elections that had, since Congress created The National Labor Relations Board, ensured workers the ability to express their preferences in secret and without any coercion.

Under current law, an election can take place to certify union representation after a union has shown the NLRB that 30% of potential union members want to have an election. The potential union members must have signed authorization cards that are indicative of their wanting to be represented by a union. An NLRB supervised election is usually held within 45 days, and it is a secret election, completely free of any coercion.

The current law permits a company to choose voluntarily to let its workers be represented by a union if more than 50% of those workers sign authorization cards. Under the Kennedy proposal, however, if the same numbers prevailed, the company would be required to grant union representation to its workers.

Unlike secret ballot elections, authorization cards are signed in the presence of a pro-union employee or a union organizer. NLRB supervision would be unnecessary. Such a situation obviously lends itself to coercion of one form or another. In our long careers of representing management in all facets of labor relations, we have witnessed many instances of organizers threatening workers and of pro-union workers exerting all kinds of pressure, subtle and not so subtle, to get employees to sign authorization cards. There have been slashed tires, anonymous threatening phone calls, social ostracization, direct threats of physical violence, and many other coercive acts. The average worker will go along to get along. When there is a secret ballot, however, workers will be able to vote their consciences, not be intimidated by those who want them to act as told.

While the AFL-CIO and other unions support Kennedy's proposal to do away with secret ballot elections, they do favor secret ballot elections when it comes to decertifying a union, which is a procedure that permits workers to decide if they want to continue being represented by a union. In the case of decertifications, the unions feel that management might intimidate union members to throw out the union and so there should be secret elections. This lack of logical consistency points to the real union agenda, which is to increase membership, while discouraging decertifications.

As unions grow increasingly more militant, they have been attempting to use card check recognition as means of swelling their membership rolls. The AFL-CIO refers to the tactic as a "death of a thousand cuts." It worked with the MGM Grand and the Hotel Employees & Restaurant Employees International Union (HERE) and it can work with hundreds, if not thousands, of corporations. HERE used its political clout in Detroit to force MGM to grant union representation, via card authorizations, to its workers in Las Vegas, if MGM wanted to obtain a gambling license in Detroit.

With secret ballots, unions win just over 50% of their elections. With card authorizations, however, unions win more than 80% of the time. And that could spell big trouble for Manufacturers.

In 2005, a large number of workers who joined unions did so as a result of Card checks. That includes 4,600 workers at Wynn Las Vegas, 5,000 janitors in Houston, and 16,500 workers at Cingular. Two decades ago, the percentage of workers who joined unions following card checks was less than 10%.

Should the legislation pass, the penalties for manufacturers would include, but not be limited, to the following: mandatory injunctions, triple back-pay, and civil penalties up to $20,000 per violation.

Republican Representative Charlie Norwood has introduced The Secret Ballot Protection Act, which would outlaw card checks going forward and require that all union recognition be based on secret ballot elections conducted by the NLRB.

Here are several examples of the loss of protection for corporations, if the "Employee Free Choice Act" becomes law.

• In an NLRB supervised election, workers' rights must be posted by the employer three days prior to the election. With card checks, workers rights are explained by a union organizer.
• When NLRB supervised elections occur, there can be no captive audience speeches within 24 hours of the election. With card checks, workers can be subjected to pro-union speeches even while they are signing their cards!
• NLRB elections have observers selected by management and labor. With card checks, workers signatures are solicited by union organizers.
• In an election, the ballot box is inspected and sealed by the NLRB. With card checks, union organizers control the actual cards.
• In elections, no workers' names or other identification appears on the ballots. On cards, the signers' names appear.

Altogether, the advantages to the unions of having card checks are enormous, and it will mean that manufacturers will be fighting new battles on new fronts. If manufacturing companies are to survive this new onslaught, it must develop a labor relations survival strategy consisting of increased and better communications with workers and have in place incentives that encourage employee loyalty and cooperation. The unions are prepared to fight vigorously to achieve their goals, and management must meet the challenge, not by antagonizing workers or heating up the old adversarial conflicts that often typify many management and labor relationships, but by establishing win-win situations, so that unions are truly superfluous to the vast majority of workers.

Stephen J. Cabot is chairman of The Cabot Institute for Labor Relations. His e-mail is [email protected]. Julius M. Steiner is chairman of the Labor Relations and Employment Law Department at the Philadelphia-based law firm of Obermayer Rebmann Maxwell & Hippel, LLP and can be reached at [email protected].