Like Asking for a Show of Hands
By Clinton S. Morse • Feb 3rd, 2009 • Category: Economy, Top StoryI 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 union organizing campaigns and require an employer to recognize a union whenever more than 50 percent of its employees sign a card authorizing union representation. Framme claims in his article that EFCA “merely levels the playing field between employees and employers in campaigns to organize a workforce” and “will not have much effect on Virginia small and medium sized employers and their employees.” These reassurances are far from accurate.
Frame acknowledges that unions currently win 60 percent of all NLRB supervised secret ballot elections which certainly demonstrates that unions have a fair opportunity to win under the current system. EFCA, however, substitutes card check which is a notoriously unreliable means of determining employee views concerning union representation. Union organizers are trained to conduct their card signing campaigns in secret, allowing them and their supporters to often totally misrepresent what signing a card means and can otherwise resort to pressure, harassment and threats to force employees to sign cards. As a result, many employees sign union cards without wanting to or without having any idea of what signing a union card means.
As the Fourth Circuit of the United States Court of Appeals in Richmond, Virginia, recognized in 1967 in NLRB v. S.S. Logan Packing Company: It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a card check unless it was an employer’s request for an open show of hands. The one is no more reliable than the other.
And in the famous case of NLRB v. Gissel Packing Co., the U.S. Supreme Court reiterated: We would be closing our eyes to obvious difficulties, of course, if we did not recognize that there have been abuses primarily arising out of misrepresentation by union organizers as to…the effect of signing a card. …the unreliability of the cards is not dependent upon the possible use of misrepresentation and threats…. It is inherent, as we have noted, in the absence of secrecy and in the natural inclination of most people to avoid a stance which appears to be nonconformist and antagonistic to friends and fellow employees.
Retired Democratic Senator George McGovern recently acknowledged in a Wall Street Journal article in which he opposed this legislation: “There are many documented cases where workers have been pressured, harassed, tricked and intimidated into signing cards that have led to mandatory payment of dues.”
What further makes the Act so completely hypocritical and exposes it as a union power grab is the fact that even though unions want to require employers to recognize unions on the basis of a card check, unions still insist that employees must vote by NLRB supervised secret written ballot if the employees want to decertify or kick the union out.
Framme follows the union party line in trying to portray EFCA as simply a means of allowing unions to target big employers while largely leaving small and medium sized employers alone. But every well-trained union organizer knows that it is much easier to organize small companies then large, leaving little doubt that small and medium sized companies will bear the brunt of the tidal wave of union organizing that would follow if EFCA becomes law.
Framme does not even mention in his article that to further stack the deck in favor of unions, EFCA would shorten the collective bargaining process for first time contracts. It would also require that if a company and a union were not able to reach an agreement within 120 days, the FMCS, a government agency, would appoint an arbitration board to impose a contract on the employer. Mandatory arbitration for initial collective bargaining agreements is, in the view of many, the most significant single change ever proposed for the nation’s private sector labor laws. Knowledgeable business leaders have been stunned to learn of this provision of the Act. Can you image what the combination of card check and government mandated contracts could do to small and medium size businesses in Virginia?
Framme also argues that EFCA will not have much impact on employers in Virginia because only 3.7 percent of wage and salary workers in Virginia belong to a union. But, a major U.S. labor leader has already boasted that the passage of the Act will enable unions to gain 15 to 20 million new members in the next 10 years, thus essentially doubling union membership in our country. Labor union dues and revenues would increase by five billion per year resulting in increased union economic and political clout. Instead of simply leveling the playing field, the Wall Street Journal has recently opined that the EFCA would result in “union supremacy.”
If this happens, Virginia has the most to lose since the largely union free character of our workforce (second lowest in the nation) is one of the chief reasons that Virginia is annually ranked the number one state in which to do business. Rather than be lulled into inaction, Virginia businesses, both large and small, should rally to defeat the EFCA which poses a direct threat to the positive business environment in the Commonwealth.
Clinton S. Morse is a shareholder in the labor and employment law section of the law firm of LeClairRyan, has repeatedly been recognized in Best Lawyers in America, the Virginia Legal Elite and Super Lawyers and is the first Vice Chair of the Virginia Chamber of Commerce.
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When I read the Constitution, it guarantees life, liberty and the pursuit of happiness. I can’t find the Article that says the rich should carry the poor. I grew up in Delaware, the same state that our VP is from, moved to PA, but still work in DE. Our society allows us to the opportunity to become our own bosses. In Delaware, which has the best business law in the country, it costs about $200 to incorporate ($89 for a Certificate of Incorporation, the EIN application is free, $75 for a DE business license (prorated to the time of year you incorporate) and $50 to open a bank account.)
Why aren’t we looking at this area? Colleges are starting to open up their IP domains. Business are downsizing which could lead to micro-businesses that service the company that once employed them (it happens at DuPont often).
Plus, how will the EFCA effect education? If you are a student in high school and are looking to “pave your future”, the new choices will be either college or a “living wage” at McDonalds/WalMart. How many people will be lured by a great wage, full benefits, pension and disability? What advantage will a college education get you?
I don’t see why the Employee Free Choice Act is such a big issue. Signing cards is like a glorified petition campaign. The supposed threat of intimidation by labor organizers is nothing compared to the history of intimidation by management willing to go to great lengths to keep their workers from organizing. So the intimidation potential goes both ways.
The way the system is set up now, a union can’t be established unless it’s elected twice – first by the petition (card) campaign, and then in the follow up election. This double election process merely extends the length of time that intimidation could occur. And even if the majority of workers in a company join a union, Virginia’s a right-to-work state and nobody has to pay union dues and join unless they want to. That’s why Virginia has low rates of union membership. And that’s why the Employee Free Choice Act isn’t a big concern, because it’s not going to have much of an effect in Virginia.
With the background of training and education that the author of this article has, it’s surprising that some key parts have been left out of this article. For instance, the amount of intimidation that employees face from employers is very real. In fact, there are many law firms in Virginia and in the US that employers bring in as “consultants” on organizing campaigns to hold meetings to bash the union. Employers require employees to attend these meetings since they are conducted during paid time. The reference to employees being “forced” to sign union cards is completely inaccurate for a lot of reasons mainly but in particular the reference that they “force” the employees to sign them in secret is absurd. Workers sign these cards in secret for fear of their employer finding out and then terminating the workers as a result. Of course that’s not the reason the company uses to terminate but most typically will sever ties with union activists ASAP.
Small businesses are actually hard to organize because usually most small businesses don’t have high-paid CEOs and an inflexible structure that results in inequitable treatment of workers at the lower level. As a result, most workers at small businesses usually don’t want or feel that they need union representation. There are cases, in recent months, where small business owners in Virginia have WANTED union representation for their shop as is evident in a CWA represented sign company in Fredericksburg.
It’s time to focus on sustainable employment in Virginia–we can’t claim we are business friendly anymore when so many Companies that were brought here in the last 15 years and were based here are now closing (Circuit City, LandAmerica, Qimonda, etc). And what’s wrong with being WORKER and BUSINESS friendly anyway? Because you can’t have success with one, without the other.
Pass the Employee Free Choice Act now! http://richmondjwj.org/freechoice
This article has so many inaccuracies it’s hard to know where to start. First off, it seems best to refute the common, yet completely untrue, assertion that the Employee Free Choice Act takes away the secret ballot option for workers. It doesn’t. The Employee Free Choice Act allows workers, not companies, the choice of how they want to form their union: through majority sign up or a NLRB election.
The author relies on scare tactics in order to make his argument. But the thing people should be afraid of is the fact that the middle class is vanishing. This is going on while CEOs continue to pad their pockets with billions in bonuses. I think most people realize that a strong economy is one that works for everyone.
The Employee Free Choice Act gives workers a chance to bargain collectively for the wages and benefits they deserve, plain and simple. In Virginia, as Framme’s original article notes, workers have to want to belong to a union. If they are being treated well, have safe working conditions and are compensated fairly they’ll have little reason to form a union. But if they aren’t, it’s in all of our best interests that they use their right to organize in order to get a seat at the table and a voice in their workplace.
http://www.youtube.com/watch?v=HlbfpzC_-I0
I agree with the views expressed by Clinton Morse. Proponents of this legislation have cleverly titled the bill “Employee Free Choice”, and any legislation that takes away the right to a private ballot/vote is anything but “free choice”. This is nothing more than unions attempting to tip the balance in their favor with a bill that is clearly mislabeled and misleading.
Once again, this piece of legislation takes away the power of the employer to choose and gives that to the employee–hence the name “Employee Free Choice”. It does not take away the right to secret ballot and the proposed legislation wouldn’t change that right. The only difference regarding union selection between current law and the law if the Free Choice Act passes is that it would give the power to the workers, where it should belong.
Find out more at http://richmondjwj.org/freechoice. Here you can read the actual Act itself and other documents that explain fully the FACTS surrounding this crucial piece of legislation.
Pass the Employee Free Choice Act now because workers in Virginia need sustainable employment now more than ever!
My article was intended to let anyone, proponents or opponents of the EFCA, take shots at it and its conclusions. I am pleased that many have done so. I was surprised, however, to see an an attorney with Mr. Morse’s qualifications misrepresent portions of my article in his response to it.
First, nowhere in my article do I claim to be either in favor of or opposed to the EFCA. The article merely reports my views of its effects on Virginia business. Second, Mr. Morse says that I claim in my article that EFCA “merely levels the playing field between employees and employers in campaigns to organize a workforce”. Again, he misrepresents my article. I simply report in the article that “proponents” of the EFCA claim that it “levels the playing field”, just as I reported that Sen. McCain calls EFCA a “threat to business and democracy.” Third, Mr. Morse says that “Framme follows the union party line in trying to portray EFCA as simply a means of allowing unions to target big employers while largely leaving small and medium sized employers alone” He again misrepresents what I wrote. I merely reported my conclusion that unions would attempt to organize large employers first. I may be wrong, but I do not follow the “party line” of a union or anyone else. Finally, Mr. Morse says that I “carefully rehearsed” the article. I have no idea what that means, but whatever it means, it is as inaccurate as the other three misrepresentations noted above.
Thank you.
Larry Framme