Virginia and the Employee Free Choice Act
By Lawrence H. Framme III • Jan 18th, 2009 • Category: Economy, Top StoryThe Employee Free Choice Act, now pending in Congress, has caused near panic among employer groups. Senator John McCain has called it a threat to small business and democracy. Proponents claim that it merely levels the playing field between employees and employers in campaigns to organize a workforce. President-elect Obama says it helps working Americans exercise their right to organize under a fair and free process.
Passions run high about the Act, and it is difficult to find an objective analysis of its expected effects. Because of Virginia’s particular labor history and the many factors that affect the organization of workplaces here, evidence indicates that the Act will not have much effect on Virginia’s small and medium sized employers and their employees.
What is the Employee Free Choice Act?
The Act is an amendment to existing labor relations law that, among other things, requires an employer to recognize a bargaining representative, usually a union, for its employees without a secret ballot election when more than 50 percent of the employees sign a card requesting the employer to recognize the bargaining representative.
How is this different than existing law?
In 1949 the National Labor Relations Board determined that an employer must recognize a bargaining representative who presents cards signed by a majority of the workforce unless the employer has a good faith doubt as to the actual majority. This determination, called the Joy Silk Doctrine, governed union organization until 1966. At that time the Board changed this doctrine to make it much easier for employers to demand a secret ballot election, even after being presented with authorization cards signed by a majority of workers. The Act effectively returns the law to its state under the Joy Silk Doctrine. Under the Act, an employer who is presented with cards signed by a majority of employees must show fraud or certain misbehavior on the part of the employees or organizer in order to justify an election.
What effect will the Act have on Virginians?
Many factors affect workforce organization and there is little reason to believe that the Act will result in large increases in union membership in Virginia, especially among small and medium sized employers and their employees.
Over the last 10 years unions have won more than 60 percent of the resolved union elections nationally, yet union membership, as a percent of the nation’s workforce, has declined during this period. Unions represented 28.6 percent of our country’s workforce in 1960 and by 2007 that number had dropped to 12.1 percent overall and only 7.5 percent of the private industry workforce. Since unions have won a majority of the union elections in the last decade, it is difficult to argue that the decline in membership is attributable solely to the method of election. Of course, union membership figures in Virginia have been much lower than national figures. In 2007, only 3.7 percent of wage and salary workers in Virginia belonged to a union, a decline from 9.3 percent in 1992.
These figures strongly suggest that factors other than a secret ballot requirement have adversely effected union organization. Globalization of labor markets, transfer of jobs to countries without labor protections, mobility of the U.S. workforce, increased education and independence of the workforce, explosive growth of small business, especially in the technical fields, decreased influence of large scale employers, general satisfaction with wage rates and workplace conditions and employers’ efforts to improve relations with employees have all made it much more difficult for unions to organize workplaces. These factors will not be affected by the new Act.
Employers that have an adverse relationship with their employees and have a predominantly low-wage, non-transient workforce and provide a work environment that is generally unpleasant to work in will remain vulnerable to organization. Regardless of the means of election, successful union campaigns are born in workforces that have little communication with their employer, feel out of touch with their employer, work in physically and mentally oppressive work environments and feel that their work is substantially under-compensated and under-appreciated by the employer. In addition, the current economic downturn has created new sense of job insecurity that may fuel organization.
If the Act does become law, unions’ initial campaigns will focus on Big Box stores like Wal-Mart and Target, where they have worked for years to build an organizational foundation and where they can generate large numbers of members quickly. After the Big Boxes, unions will target large employers in basic industries that are already partially unionized: including construction, hospitality, health care, retail, food production and manufacturing. Smaller businesses, for the most part, will not be early targets. States like Virginia with right-to-work laws and traditions of low union membership will be particularly low priority for organizing campaigns. Not only does the lack of union culture work against the unions, but also right-to-work laws prohibiting closed shops mean that unions are not guaranteed full membership even among successfully organized workforces.
This does not mean that the Act is without effect on VirginiaFor most small to medium sized Virginia employers, however, the Act and the controversy surrounding it is a reminder to stay in touch with employees, treat them as valued members of the business team, regularly show appreciation for the employees’ work and fairly compensate them. In the end, whether or not a Virginia workforce organizes is much more dependent on the relationship between the employer and the employees and a host of external factors, than on whether or not every workplace is entitled to a secret ballot election.
Photo on homepage used under a creative commons license from cursedthing.
Lawrence H. Framme III is the President of PrimeLegal Consulting, a grass-roots consulting firm. He is also Chairman of Framme Law Firm PC of Richmond, a former Virginia Cabinet Secretary for Economic Development and a former State Chair of the Virginia Democratic Party.
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Employee Free Choice Now . Org
Educating The World on The EFCA.
Myth vs. Reality: The REALITY is the Employee Free Choice Act Helps American Workers and their Families.
Despite the need for reform, critics of EFCA continue to misinform the public about the bill and hide the serious shortcomings of current labor law. Democrats are committed to setting the record straight and passing this important legislation on behalf of American workers and their families.
MYTH: EFCA will prevent the use of secret-ballot elections.
REALITY: EFCA does not strip workers of their right to choose a secret-ballot election to decide whether to select — or not to select — a union representative. EFCA simply gives workers the additional option of selecting a union representative by majority sign-up.
For More Information on EFCA please visit our website and blog
http://www.employeefreechoiceactnow.org
http://efcanow.blogspot.com/
The problem with the EFCA is that it encourages coercion of the employees by the labor organizers because all employees who do not sign the pro-union card will be exposed. I see no safeguards against such coercion.
Mr. Framme is quite right that only businesses that deserve unions will have them. I don’t think that Mr. Framme can conclude that this law is not so bad because it will not seriously impact Virginia. I am concerned about the entire country. Finally, there is a priciple here. The only free election is one cast by the people, in secret, with ballots counted publicly. Workers deserve no less.
I am not surprised that the author, a prominent Democrat, says it’s “no big deal”. However, Democrats count on it increasing union membership and therefore increasing the money contributed, WITHOUT CHOICE, to Democrat candidates. Otherwise, the Democrats would not be so strongly favoring it. His article does not mention Virginia’s historical position as a right-to-work state and the impact this may have on that in the long term. I suppose that, as a staunch Democrat, the author might not object to voting for candidates in general elections and perhaps even primaries by a vote that was not secret, but most Americans still cling to the traditional concept of elections by secret ballot because they are well aware of the historical results in countries where the secret ballot has been only a dream. Intimidation of voters in public elections can quickly lead to demagoguery and the same can happen in union elections.
The fact that we must remember is that a “secret” ballot election really is never secret because employers ask employees one-on-one in face-to-face conversations how they will vote so employers know prior to the election. Unions aren’t the culprit here and I’m wondering why we don’t see that it’s a HUMAN RIGHT to have a job that pays a living wage. Employers should provide benefits and pensions and if unions are necessary to secure those items then why aren’t we supportive. Under current National Labor Relations Board law, if an employer violates the National Labor Relations Act during an organizing campaign by using illegal tactics like firing workers as a result of their union activity, they are only required to post a letter of apology in the workplace. They aren’t required to pay fines to the unjustly terminated employee. Does that seem just? Workers deserve no less than those items and should they choose to organize with a union, they deserve the right to do so without fear of threats or reprisals. Pass the Employee Free Choice Act and level the playing field for workers in Virginia and the US, because we can’t continue to make worker’s rights the last priority.
EFCA will in fact wipe out the secret ballot. It does so by creating a new “public” process through which union organizers can use intimidation and coercion to force workers to sign. Even the New York Times (not a conservative mouth piece) acknowledges that EFCA eliminates the secret ballot. This is one of the reason that George McGovern and Al Sharpton are both so opposed to this legislation.
EFCA will also significantly increase government involvement in business through forced binding arbitration. Under EFCA, if a business and a union don’t come to a labor agreement in 120 days then it will be referred to binding arbitration through a federal arbiter that will force a two year contract on the business. The idea that a federal bureaucrat will decide what a contract will include is really terrifying. It probably the only way the unions can kill a business faster than the union contracts killed the car business in Detroit.
One other thing – if EFCA passes can we amend it to require all the Democrats on the Hill to vote publicly for their leadership? These same politicians use a secret ballot to elect committee chairs etc. Even Secretary of Labor designee Solis supported the secret ballot for the Hispanic Caucus elections. If it is good enough for them why isn’t it good enough for a union? Oh, I forgot… it is good enough for a union. After all, they use secret ballots to elect their leadership as well.
It’s funny that we are still hearing the same rhetoric and arguments from those in opposition of the Employee Free Choice Act. When referring to the “elimination of the Secret Ballot” one is speaking of majority sign up or “card-check” then we should remind the public that that’s not a new option. Companies can recognize, as Cingular Wireless (now AT&T Mobility/Wireless) and others have, that when a majority of employees at a facility express that they want a union by signing cards or a petition that that facility will be union. That does not mean that workers are joining the union directly but that they simply want to be union represented. As someone who has been part of a union organizing campaign myself, unions don’t FORCE workers to sign cards–if workers don’t want to sign, they don’t and the organizer moves on. In states like Virginia which is right-to-work, workers aren’t required to join a union or even pay maintenance fees even while they benefit from the same pay, etc as the union due-paying members.
Let’s revisit the key point that was addressed in the original article–when workers are treated fairly and provided the things they should be entitled to like benefits, etc. then they usually DON’T WANT A UNION! So my suggestion is that businesses step up and provide those things voluntarily because again—workers’ rights should be human rights and nothing less. The common thread we all have is the need for sustainable jobs. Frankly I’d rather see these arguments become productive conversatations about outsourcing and bringing jobs to the US. Workers keep the country running and the more we oppress them, the more the whole country suffers.
PASS THE EMPLOYEE FREE CHOICE ACT NOW!!!
Framme’s analysis is deficient in several ways. Speaking on behalf of the National Right to Work Committee, I’ll address just three here. First, Framme ignores the well-established fact that, under current law, union organizers file for elections only in cases in which they think they’re likely to win, and frequently withdraw their election petition in advance if they think they’re likely to lose. Therefore, the high percentage win rate union organizers already enjoy does not mean that Big Labor could not be corralling workers into unions at a far brisker pace than it currently is through organizing campaigns.
Second, anyone who knows the first thing about union organizing drives knows that union organizers enjoy a far higher success rate in campaigns to get “exclusive” bargaining privileges in small and medium-sized businesses than they do in large businesses. There’s no reason to believe this will change if the so-called “Employee Free Choice Act” is passed, so many Virginia small businesses and their employees will certainly be targets of union organizers if it does.
Finally, as some commenters have already suggested here, even businesses that are never directly targeted by union organizing campaigns can be badly hurt when their in-state and out-of-state suppliers and customers are subjected to “exclusive” union bargaining and become less efficient and profitable as a consequence. Therefore, Virginia employers and employees of all kjnds will suffer if the “Employee Free Choice Act” becomes law.
Stan Greer
Newsletter Editor
National Right to Work Committee
Springfield, VA
We still have yet to see a response regarding my points as well as those made in the original article particularly as they relate to the reason many workers choose unions. I also find it hard to stomach that anti-union organizations such as National Right to Work and other business associations in opposition of the Act are instilling fear into small businesses around this legislation. In a state that has extremely low union density in comparison to the workforce at large, there are very few small businesses that are union represented. In fact, small businesses in general tend to treat employees better than large corporations that can see workers as nothing more than a body at a desk.
The references that workers could be “corralled” as though they are animals insults the whole idea that these are human beings with the right to choose, a right they would still retain because as I mentioned, even in a unionized facility in Virginia employees can’t be forced to pay dues or maintenance fees to a union.
Passage of the Employee Free Choice Act would keep quality, sustainable jobs (including those in Management positions) to the state which in turn would boost the economy. Higher wages, better benefits, job security–these are all items that union contracts can bring workers. It doesn’t sound like suffering to me.
Let’s stop the anti-worker machine because it’s been going for long enough. Support the Employee Free Choice Act now:
http://richmondjwj.org/freechoice
I have been reading the discourse regarding the Free Choice Act and could not let inaccuracies go on. Having been involved in labor relations for over 25 years and having been involved in several union orgainizing attempts spearheaded by the Teamsters and Printing Industry unions, I have seen first hand the methods and practises utilized by union organizers. First, union organizers operate in secrecy to initiate card signing to keep the employer from being able to respond and give an alternative viewpoint. Good decisions are not made with out having all the information and all sides represented.
Organizers would not petition for an election with out 55 – 60% of the employees signing cards because they know that a signed card does not mean a vote for the union. I have seen first hand the intimidation factor used to get employees to sign cards and threats of viololance, burned vehicles, directed to those who oppose union supporters. If the employer questioned employees about their potential votes or even their thoughts and feelings about the union, the union would move quickly to have charges filed to invalidate the election process and have the NLRB require the company to bargain with 51% of employees signing cards.
If the playing field is truely to be leveled, the unions have to be held accountable for their promises made during organizing attempts with workers able to sue for breach of promise. The Supreme Court has ruled that uions are accountable for their promises because they have no power to make them come true yet false statements made by unions abound in union organizing drives. If the playing field is to leveled in the Free Choice Act then union decertification would only take a card signing process with 51% of employees saying they no longer want a union representing them instead of the secret ballot election process. How is it that card check is not seen as the best method in both directions if it is truely the fairest method available for workers to excersice theri rights?
The secret ballot is the only way for workers to safely and securely excersice their right to choose whether or not to be represented by a union. Bargaining is the only way to determine the best means to compensate and govern a workforce, not forced arbitration.
The premise that union representation is best for workers and for the country has not been borne out in reality. We only have to look at the major unionized industries to see the real affects of unions today. The american auto, steel,and heavy machinery industries that are becoming extinct in todays world economy, I am not saying that there aren’t serious issues and abuses that exist in businesses today. But, greater unionization and the Free Choice Act is not the answer to solving them.
One glaring inaccuracy in the various posts of “Richmond Jobs with Justice”, whoever that is.
“Under current National Labor Relations Board law, if an employer violates the National Labor Relations Act during an organizing campaign by using illegal tactics like firing workers as a result of their union activity, they are only required to post a letter of apology in the workplace.”
This is patent nonsense. Under Section 8(a)(3) of the NLRA, if an employer fires a worker for union activity, the NLRB will issue an order that the worker be reinstated and given back pay. In fact, the vast majority of employers faced with a union campaign are afraid to say anything to employees for fear they will be misquoted and Unfair Labor Practice charges brought before the Board by the union. There are pros and cons to a union, and that information is vital to employee choice. The difficulty most employers have is getting their supervisors (who cannot be in the union) to talk to employees about those pros and cons, which is perfectly legal. Standard advice to an employer making speeches to employees is to obviously read the speech from a paper document. Standard language in the speech goes something like, “I’d love to be able to talk to you informally like I always have, but my lawyer says I have to read this speech so that no one can misquote me and claim I said something illegal” This represents the lengths most employers go to avoid being seen as coercing their employees. There were always exceptions, and those employers got stung by the Board and the courts.
It has long been the goal of unions in organizing campaigns to shut down an employer’s response to the organizing campaign. In the 70’s there was a movement to change the law to shorten the time period between the filing of the union’s petition and the election. Confusion caused by inadequate time to learn the facts was the friend of the union organizer. Thus, there developed a premium on consulting outfits or big law firms who were ready to descend on an employer with materials and advice this afternoon if they got a phone call this morning. Most times, when employees found out that the union promises were mostly ephemeral, they lost the election. Adequate time is the friend of the real knowledge and understanding and the enemy of confusion.
Our “friends” in Congress recently provided us a good example of this same idea. When the September bailout was precipitously passed, you will remember that it had to be done “Right now”, that secrecy surrounded the event, and the result was poor and uninformed. Democrats now want to apply that to union organizing. Employee elections at the request of either party have stood the test of time. Where a union is really needed because of a bad employer, the union can easily win an election. Where a campaign is the result of a few, very active, disgruntled employees who have been promised union stewardships by the union reps, other employees usually defeat the effort when they learn all the ins and outs of being in a union.
To assume that employers don’t know how their employees are going to vote during NLRB elections is naive. Please take the time to watch this video that points out secret ballots are “secret” in name only.
http://www.youtube.com/watch?v=AiBleUu-vJw
Next, a 26 year old organizer can’t fire me or threaten me with my job. An employer can and often they do. To imply that majority sign up is this scary new system that will, all of a sudden, open workers to intimidation is ludicrous. It’s been used for decades and is proven to be less divisive. Also, there is plenty of coercion, intimidation and harassment going on right now. Only now, it’s frequently committed by the guy who signs the paychecks.
The original article lays out a rational explanation for which businesses would likely be affected by the Employee Free Choice Act. I think many of the people who have commented already have found that it’s harder to scare small and medium business owners with the facts. Especially in Virginia, companies that treat their workers with respect, pay fair wages and offer decent benefits are not the targets of this legislation. On the other hand, workers who are not treated with respect or compensated fairly benefit from forming a union and this bill evens the playing field for them. Because right now, the deck is stacked heavily against labor and towards management.
But all of this ignores the simple fact that our economy is in a tailspin and Big Business is fighting a piece of legislation that will help strengthen the middle class. The Employee Free Choice Act repairs a broken system and makes it easier for workers to bargain collectively for the wages and benefits they deserve.
[...] am writing in response to Lawrence Framme’s carefully rehearsed article favoring the Employee Free Choice Act, legislation which would eliminate secret ballot elections in [...]