The Employee Free Choice Act: Is the name deceiving?

... From Biz2Biz NWA June/July 2009

By Megan Cherry / DB Squared / Fayetteville

There has been great controversy about the Employee Free Choice Act, or EFCA. Also called the “Card-Check Act,” EFCA would replace the secret-ballot system currently used during union organized elections. Employees would no longer vote for or against unionizing anonymously. If EFCA passes as is, workers will sign union cards to indicate they want union representation, and those cards will be known.

President Obama is in support of EFCA. As his comment released by the White House explains, “I do not view the labor movement as part of the problem. To me, and to my administration, labor unions are a big part of the solution. We need to level the playing field for workers and the unions that represent their interests – because we cannot have a strong middle class without a strong labor movement.”

John Engler, former three-term governor of Michigan and current President of the National Association of Manufacturers claims the controversy is in the language. “The reason the unions speak in broad, pleasant-sounding phrases is because they know Americans regard secret ballots as a basic, democratic right. No wonder the advocates of the misleadingly-named Employee Free Choice Act do not want to talk about the bill’s substance. To speak openly and honestly about its provisions would mean its quick death,” he writes in The Hill.

Unions, by definition, are organizations workers join to protect their common interests and improve working conditions. Those against the Act point out how it will actually resist these goals. According to James Sherk and Paul Kersey, authors of How the Employee Free Choice Act Takes Away Workers’ Rights published by the Heritage Foundation, unions have been charged with making threats, violence, coercion, and intimidation thousands of times since 2000 and the bill would leave workers vulnerable to threats and intimidation.

Bruce Johanson is a principal partner of the Johanson Group and DB Squared in Fayetteville, an HR solutions company specializing in compensation management. “There are two aspects to this Act that are frightening,” he says. “Elimination of the secret ballot by EFCA will take a piece of democracy and freedom away from the American people. Secondly, businesses can only handle so much cost. I truly believe that this Act is a tipping point that will cause more companies to leave the US and conduct their business in other countries.”

Attorney J. Bruce Cross, a director at Arkansas-based Cross, Gunter, Witherspoon and Galchus, whose primary focus is labor and employment law, has been hosting seminars on how this statute will impact business and economy.

“It is important to understand that despite what propaganda is being said on TV (advertising), it is not the employees’ choice on this matter. The Unions are the ones that decide whether they are going to be certified as the employees’ representative by card check or secret ballot.

According to Cross, this “choice” was available under the NLRA (National Labor Relations Act) when it was first passed in the 1930s. By 1947, the system was already being abused and Congress amended the law.

“EFCA seeks to return to the days of the 1930s,” says Cross. “In addition, with the requirement of binding arbitration, employees and employers may well be stuck with a contract that neither party likes. It could also put the employer in a position where it cannot compete financially. This will potentially lead to employee cutbacks or even the shutdown of the business.”

Richard A. Epstein, a distinguished professor of Law at the University of Chicago and consultant, writes, “EFCA could lead to the partial nationalization of all unionized firms. The immediate job for CEOs is to play tough defense to prevent the passage of a statute that promises to lay siege to every firm in the US. They dare not be caught napping.”

Megan Cherry works with DB Squared in Fayetteville. She is an active member of NOARK, SHRM and the Compensation Association of the Ozarks.