Taking Exception

The Employee Free Choice Act, Labor's Card-Check Ruse

By Brian Worth
Tuesday, May 19, 2009

Compromise for the sake of compromise often leads to bad public policy, and efforts to reach a compromise on the union "card check" bill fall into this category. The issue here is that unions are declining because they don't serve the needs of today's workers, but instead of admitting that, labor is trying to save itself by unfairly changing the rules. While the Coalition for a Democratic Workplace has agreed with The Post's assessment of the Employee Free Choice Act (EFCA) as flawed legislation, we disagree with the premise in the May 11 editorial "The Imperfect Union Bill" that we must accept ill-conceived proposals to appease the notion that a compromise is needed on EFCA.

The legislation, as it was introduced, proposes altering the National Labor Relations Act, which relies on a secret ballot in an election about forming a union, and replacing it with a "card check" process by which a union is certified when a majority of cards are signed. Another provision would force government-imposed contracts on businesses, tying the hands of small-business owners and crippling their ability to create jobs.

Labor unions have been trying to pass the misnamed Employee Free Choice Act since 2007. To combat their declining membership, they claim that legislation is needed to make it easier to organize. This argument has gained some traction on Capitol Hill, where a few senators are working to craft a compromise. While there may be legitimate issues worth debating, we have policy and practical concerns about schemes aimed at addressing "problems" that stem from acceptance of union rhetoric on the root causes of unions' declining membership.

The problem is not that unions are losing secret-ballot elections. To the contrary, unions win two out of every three federally supervised organizing elections. An analysis of National Labor Relations Board data by the Bureau of National Affairs' research division, BNA Plus, found that in 2008 unions won 66.8 percent of the votes and that the number of unionization elections held increased to 1,579, from 1,519 in 2007. Only in Washington can special interests winning two-thirds of the time see a crisis requiring a legislative fix that would place unreasonable burdens on small businesses and dismantle worker privacy rights.

Union leaders know that they do not have the votes necessary to overcome principled bipartisan opposition to this legislation in the Senate. That is why EFCA supporters have shifted their energy to passing "compromise" legislation consistent with the original bill's "principles."

Compromise in the form of mail-in ballots (which is essentially card check with a stamp, a.k.a. "postcard check"), allowing union organizers unfettered access to employees in the workplace and mandating what amounts to quickie elections are proposals that purport to expedite the organizing process but, in reality, would sacrifice the rights of employees for the wants of professional union organizers, just as EFCA would.

Unions already enjoy significant access to employees outside of the workplace: They can visit employees' homes and approach workers in parking lots and other public places. Giving professional organizers unprecedented workplace access would disrupt productivity and infringe on worker privacy.

Speeding up the timing of union elections is spun as a reasonable solution to union claims of management delaying tactics and the amount of time it takes to hold elections. But the NLRB says the average time to complete a secret-ballot election was 38 days in 2008 (down from 50 days in 1980). Given that campaigns for the U.S. House and Senate are already heating up a full 18 months before Election Day 2010, five weeks is a reasonable amount of time to decide whether to unionize a workplace. One could argue that deciding whether to join a union, a decision that leads to automatic paycheck deductions for union dues and reliance on frequently underfunded union pensions, is at least as important as electing our political leaders.

The Post editorial disregarded the impact that rushed elections would have on small businesses. Most small-business owners do not have legal or human resources departments to assist them in following complicated NLRB election procedures. They are focused on running their businesses. Professional union organizers are experts at the process and at manipulating it.

The Coalition for a Democratic Workplace is committed to reviewing proposals based on the merits, the soundness of the policy and the practical implications of each suggestion. We remain concerned that any offer for compromise under the guise of "reform" will morph into an anti-worker Trojan horse where the undemocratic card-check scheme and the job-killing binding interest arbitration provision are adopted as amendments. The Coalition for a Democratic Workplace does not support these EFCA "compromise" proposals and will not accept bad ideas simply to avoid being called unreasonable.

The writer is chairman of the Coalition for a Democratic Workplace, a Washington-based organization of more than 500 associations, businesses and organizations across the nation.

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