The BNA Daily Labor Report (subscription needed) provides an interesting re-cap of a seminar held by NYU’s Center for Labor and Employment Law where Thomas Kochan (member of President-elect Obama’s transition team) asserts that the misleadingly named Employee Free Choice Act would “build quality labor-management relationships.”

Kochan said that he sees “no significant differences found between settlements reached through arbitration or through bargaining” in public sector collective bargaining. No difference? Unfortunately there will be clear difference in collective bargaining agreements negotiated in good faith in the private sector compared to the terms imposed on businesses by a Federal bureaucrat as this legislation would allow.

Andrew Kramer, an attorney at the firm of Jones Day reminds us that “that the government is not in the business of imposing terms and conditions,” under concepts held in current labor law. Unfortunately this bill would be a radical overhaul of our current legal system that does nothing to encouraging cooperation between employers and labor unions.

A former NLRB member and now labor lawyer, Peter Kirsanow blogs over at NRO’s The Corner , noting the NAACP’s endorsement of the Employee Free Choice Act and pointing out some of the consequences of a card check system that its proponents  might not have considered.

Joe is one of 7 blacks out of 38 workers at a casting plant. He doesn’t have much seniority because he just came to the plant after working for the last 12 years at a bearings manufacturer that recently closed.

 Joe suspects most of his co-workers don’t want a union because they’ve seen other plants in the area shut down operations and move to states with lower average labor costs. Joe’s in favor of the union because he thinks it will mean higher wages for someone like him.

 Joe’s the only black employee on second shift. At lunch one day, a co-worker approaches him and in front of everyone in the break room asks Joe to sign an authorization card. Joe begins to reach for a pen but hesitates when he senses his co-workers watching him. He declines to sign.

 EFCA could put any employee in the uncomfortable position of making a public declaration that might be opposed by his employer, co-workers, or union organizers. The fact that the employee is new or a minority in the workplace doesn’t do much to lessen that discomfort. You’d think that if any organization would recognize that fact it would be one that purports to advance the interests of minorities.

It’s unfortunate that groups like the NAACP who have been such adamant champions of protecting voting rights would now wish to  abandon the secret ballot, in the process exposing workers to intimidation in the workplace.

We’re reminded again this week of the importance of private ballots as the Congressional party caucuses hold their leadership elections, conducted via secret-ballot voting. Obviously caucus members appreciate the freedom, flexibility and protection (from retaliation) provided by this sort of confidential voting. Then why do some want to deny employees the same protections when voting on union representation in the workplace?

Under current law, any union organization that seeks to represent a group of employees must first demonstrate employee interest in the union by collecting signed authorization cards from at least 30 percent of the employees. After enough cards are collected, the union may then petition the National Labor Relations Board (NLRB) to hold an election that uses secret ballots to determine whether the majority of employees want that union to represent them.

Unfortunately this all may change under the Employee Free Choice Act…

Last year the Department of Labor started developing a rule governing how the Family Medical Leave Act (FMLA) should be interpreted and implemented. Finally today, the Department announced their final regulation which strengthens this important law that has benefitted millions of employees. These new rules not only clear up much of the confusion that surrounded the law but defines how the families of military personnel can use the FMLA for the first time.

The AFL-CIO’s Executive Council issued a statement calling on Congress and the new Administration to pass the outrageously named Employee Free Choice Act in light of the current financial crisis.
 
In their words:

“Unless we restore the power of working people to bargain with their companies for a better life, economic growth will not be broadly shared and income inequality will not diminish” 

Recently the NLRB released statistics that show labor unions won two-thirds of the union representation elections held in the first part of 2008. Last year unions won just more than half of these elections. Plain and simple – the current system works.
 
Contrary to what Labor leaders at the AFL-CIO will assert, union members aren’t sold on EFCA and do not want to lose their right to a secret ballot. In fact, recent polling has found widespread opposition among union household voters (69 percent) to card check legislation, which would replace a federally supervised secret ballot process with one that requires a majority of workers to simply sign a public card to authorize a union.
 
The AFL-CIO realizes that they are facing concerns from within their ranks, in their statement they indicate that they plan to educate their members on the legislation in order to have them contact Congress. From their release:

“Starting in December, hundreds of state federations and local labor councils will conduct member education and mobilization meetings”

The BNA today announced (subscription needed) an analysis of new data from the NLRB on union-organizing elections shows that the the number of  union representation elections held in the first half of this year was the same as the number of elections held in the first half of 2007. 

 Even more telling is the percentage of  overall elections won by union increased significantly from 58.% in 2007 to now 66.8% in the first part of 2008. So much for the corporate monster chewing up organized labor.

 Proponents of the misleadingly named Employee Free Choice Act (EFCA) assert that “democratic sign ups” are the most effective way to determine the wishes of a majority of employees. By using the term “democratic sign ups”, these union groups are implying that card check organizing drives where each employee’s choice is made known publicly (thus being exposed to intimidation) is democratic. This is far from accurate.

As the latest data shows, the current process for forming a union is working, and is resulting in a greater formation of unions. Union leaders however claim that the system is broken. The fix? Employee forced choice with the EFCA. Not exactly a “democratic” process. President-elect Obama has often said that if a majority of workers wish to have a union, they should be able to form a union. The latest data is showing that they’re doing just that.

Other news items related to the misnamed Employee Free Choice Act (EFCA) have popped up recently.

• Peter Kirsanow follows up his recent post on NRO’s The Corner with additional information on the impact of the binding arbitration language in the so-called Employee Free Choice Act. Kirsanow highlights that if EFCA passes, federal arbitrators will set the terms of the first labor agreement, preventing workers from having a true contract. Rather, it will be a binding measure that employees will be forced to accept.

• Thomas McClanahan with the Kansas City Star analyzes the economic impact if EFCA passes. McClanahan attests that under EFCA productivity is sure to drop and economic growth will be hindered.

UPDATE (4:50pm)

• The third piece in Kirsanow’s series in NRO’s The Corner discusses the Canadian model of labor law. Under the Canadian system, provinces can choose to employ card check. Kirsanow points out that since 1980, most Canadian provinces have abandoned card check and have moved to secret ballot elections.

Forecasting a possible labor agenda under an Obama Administration the WSJ outlines today that includes many familiar items — the Employee Free Choice Act — and some not so familiar, including the RESPECT Act, as well some lesser known provisions within the card check bill such as language to impose binding arbitration for first contracts. The column’s summary of the mandatory arbitration provisions is the most concise argument against the card-check bill that’s out there.

Another labor-friendly provision of the Employee Free Choice Act is mandatory arbitration. Under current law, labor and management are required to bargain in good faith but aren’t obliged to reach an agreement. Under Mr. Obama’s proposal, if the parties can’t settle on a contract within 120 days, the dispute goes to an arbitration panel which can impose a contract that is binding for two years.

 

As a practical matter, contracts typically involve dozens of provisions dealing with wages as well as seniority, grievances, overtime, transfers and promotions. Rarely is this accomplished in four months. The provision would notably shift bargaining power to unions, which would have an incentive to run out the 120-day clock and let an arbitrator impose a contract that is bound to include much of what unions demand.

Other points included in the column:

• Senator Obama’s support for the RESPECT Act. This seemingly innocuous bill would drastically amend the National Labor Relations Act to change the legal definition of a supervisor. The result would place many supervisors in the same bargaining unit as their subordinates. As clear conflict of interest;
• The Senator would bar companies from replacing striking workers; 
• Sen. Obama’s plans would also force state and local governments to recognize union leaders as the exclusive bargaining agent for first responders instead of allowing these important public servants to negotiate directly with their employers.
• Additionally, the column states that Sen. Obama is against states’ rights to pass Right to Work laws that protect employees that refuse to join a union or pay union dues.

In other related news, House Republican Leader Rep. John Boehner (R-OH) opines in Townhall.com other plans to implement big labor’s agenda. His piece focuses on the impact of EFCA and Sen. Obama’s position on the bill. Boehner speculates that if EFCA passes “With the stroke of a pen, a time-honored right [to secret ballot union elections] would be signed away into the pages of history.”

Peter Kirsanow at NRO’s The Corner details the “other” provisions of the so-called Employee Free Choice Act and poses some great questions.

As nervous as employers are about card check, it’s EFCA’s first contract mandatory arbitration provisions that have businesses ordering antacids by the truckload. Under EFCA, if the company and union fail to reach agreement on a contract within 120 days after the union requests bargaining, the matter will be referred to an arbitration panel that will actually write the contract. That contract is binding for two years. I’ve negotiated more collective bargaining agreements than I can remember, but I can’t remember too many times when an agreement was reached on an initial contract in four months. It sometimes takes that long just to agree upon the shape of the table.

What if an arbitrator mandates a wage scale that makes the employer uncompetitive? What if the arbitrator puts the company into a pension plan that renders the company unmarketable? Can the arbitrator require interest arbitration in exchange for a no-strike clause?  The questions are interminable.

The Politico today lays out the Presidential candidates’ positions on the several major economic issues. Politico describes the misleadingly named Employee Free Choice Act (or ‘card check’ bill) as a bill that “would make union organizing easier.” Unfortunately this legislation will make the organizing process much more difficult for workers.

This bill eliminates secret ballots for union elections exposing workers to coercion and intimidation, effectively depriving them of free choice. It should more properly be called the Employee No Choice Act.

The current process for determining if employees want a union is a federally supervised private ballot election. A majority of these elections result in the certification of a union.

Union bosses, however, find private ballot elections to be an impediment to unionization. They demand the card check process in which employees are forced to cast their vote in front of union organizers and fellow employees who support unionization, sacrificing their secret ballot rights.

Will the card check bill make union organizing easier for union bosses? Definitely, but it would also destroy one of the most fundamental rights of American citizens - the right to a secret ballot.