EFCA Will Kill Off Secret Ballot Elections and Impose One Sided Penalties
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by Ted Phlegar
The Employee Free Choice Act, a.k.a. Card Check, which is being pushed by organized labor as its top legislative priority, would effectively strip workers of the protection of a secret ballot in union organizing elections. While the proposed bill leaves a narrow window where workers could still have a secret ballot election, as a practicality, organizers would never let it happen. Proponents of this bill argue that it would give workers the choice of having an election or not. In truth, it would not be the workers deciding which method to use. That choice would be made by the unions’ organizers, and to choose a secret ballot election would goes against the union’s best interests.
Unions need new members. Their ranks have been steadily declining for decades. As fewer young workers join unions, their average aged member moves more steadily toward retirement. This means less people paying dues and more people expecting pensions. Most union pension funds are already underwater. Organized labor needs a quick fix to refill its ranks with dues paying members.
Under the proposed bill, if union organizers get 30% of a workforce to sign authorization cards, they can apply to the National Labor Relations Board for a government supervised, secret ballot election, however, if they get just one card over the 50% mark, the NLRB must certify the union as the workers’ representative and a secret ballot election becomes barred by law and may not take place. This is not a hurdle because most of the time union organizers will gather cards from 60-70% of the workforce before asking for an election.
The election route usually takes longer, must be done openly, employers can express counter arguments and it has a lower chance of success. A card check campaign can be done under the radar, can continue until sufficient cards are gathered and an employer may know nothing until the deed is done. Workers only hear opinions from the organizers’ point of view and the overall success rate, not surprisingly, is higher.
It’s similar to when I go camping with my family. While my two boys hold sticks their mom has topped with marshmallows, I have to start the campfire. Technically, I can start a fire by rubbing two sticks together or I can strike a match. One method takes longer, requires more effort and has no guarantees of succeeding. The other method is quicker, takes less time and energy, and has a virtually guaranteed chance of providing the result that I want. When, in my lifetime, will I ever start a campfire using two sticks if I don’t have to?
If the Card Check bill is passed, as a reality, the secret ballot will die out. Card check organizing is quicker, cheaper, can be done completely one sided, and is successful much more often. When, in our lifetimes will we ever see the NLRB administer another secret ballot election? We won’t.
The Card Check bill also increases penalties for unfair labor practices that occur during organizing drives. Proponents of the bill again tout EFCA as balanced, fair and even, yet these new penalties would be imposed solely only against employers. Not a single new penalty would go against unions or labor organizers. The traditional penalty structure would be changed from “make whole” remedies to punitive damages, designed to punish the employer. Back pay violations would be tripled and the employer could be fined civil penalties of up to $20,000 for each act deemed to be a willful or repeat violation. Imagine the devastating effect this could have on a small or medium sized business. And again, this is only against employers.
Proponents of the bill argue that this one-sided treatment is warranted because the vast majority of unfair labor violations are committed by employers. While I disagree with this premise, I will accept it to make the following point. If the vast majority of violations are committed by employers and the bill were fair and neutrally written so that any violation was punishable by these new penalties, then employers would be assessed the vast majority of punishments. Instead, under this bill, unions and their organizers are protected and given a free pass from these new penalties, regardless of their behavior. There is nothing “fair” or “balanced” about it.