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The Public Forum topic for April 2009 is “Resolved: That the Employee Free Choice Act serves the best interests of the American people.” The Pro side of this resolution will argue that the EFCA, also known as “Card Check” is a progressive piece of legislation encouraging union rights and better collective bargaining ability among working class Americans. The Con side will argue that the EFCA works against business interests, damages the competitiveness of US industry, and is counterproductive for encouraging union rights. This months Public Forum Briefs are intended to give you a set of evidence to prepare and debate these questions.

TOPIC OVERVIEW

In order to understand the changes to US labor laws proposed by the Employee Free Choice Act, it’s first necessary to understand a little about the history of unionization in the United States. During the Great Depression, Congress passed the National Labor Relations Act, designed to boost the ability of American workers to collectively bargain with companies for things like better wages, benefits, or hours. In particular, it established rules (still in effect) governing the process by which workers could choose to associate with a union. The NLRA mandates that employees of a company may choose to unionize by one of two methods. First, an election using secret ballots may be conducted by the National Labor Relations Board, if 30 percent of employees sign a card expressing interest in the union. Second, if more than 50% of employees sign cards, they can form a union – this is known as “majority sign up.”

There are several barriers to the formation of unions, despite this process. Most importantly, employers are given the final say over whether to recognize employee’s attempts to unionize. An employer can refuse to enter to negotiations with a union chosen through majority sign up, and has a variety of procedural tools to delay and frustrate NLRB elections. For example, the employer can insist on a secret ballot election conducted by the NLRB, even if 100 percent of the employees have already signed union cards – and then take steps to encourage employees to vote against the union, challenge the legitimacy of votes, or sue to delay the election. There are also very few sanctions available to punish companies who choose to violate current standards.

This brings us to the EFCA, which seeks to amend the National Labor Relations Act for two main ends. First, it forces the NLRB to certify a union through majority sign up, without holding a secret ballot election. It completely eliminates the ability of an employer to circumvent this process by requiring an election, and substantially increases fines for companies which stand in the way of legitimate attempts to unionize. It should be noted that this does not eliminate the ability of employees to choose a secret ballot election on their own – it only prevents companies from dictating it. Second, the EFCA makes it much easier for a union to force a company to actually negotiate, including a provision allowing the federal government to mediate a contract dispute very quickly if the company is trying to delay reaching an agreement.

It is worth mentioning that the EFCA also makes a variety of other changes to labor laws, most of which are too technical to delve into in any detail. Most of the controversy in the mainstream media revolves around the secret ballot provision and the forced negotiation provisions discussed above. Some people view the automatic unionization through majority sign up (called “card check”) as a de-facto elimination of the secret ballot process, and others erroneously think that the EFCA actually prohibits secret ballots altogether. Given the difficulty of understanding the exact changes to complex labor rules, it should come as no surprise that there is a great deal of somewhat misleading commentary on the nature of the EFCA from both sides of the debate.

The EFCA has not passed as of this writing. It was brought up in Congress in 2007, passing the House by a healthy margin, but failing to achieve enough votes in the Senate. Because President Obama has been a vocal supporter of the bill, and predominantly pro-union Democrats are now in control of Congress, many people predict the EFCA will pass in the new session. It will assuredly by a controversy, and it remains an open question whether supporters will be able to muster the 60 Senate votes necessary to overcome a Republican filibuster.

Topic Analysis (2/2)

DEBATING THE PRO SIDE

To defend that the Employee Free Choice Act is a net positive for the United States, the Pro should be prepared to defend unionization in general, the EFCA as a mechanism for achieving it, and be able to defend the act against opponents who claim it would be counterproductive and damaging for US business interests. It is also important to be able to defend each provision of the EFCA, including card check procedures, forced arbitration, and increased fines.

Since so much of the debate surrounding the EFCA comes against the backdrop of the current financial crisis, the Pro should be prepared to argue why the EFCA would be beneficial for the economy. To this end, a few helpful statistics should be kept in mind. First, the number of unionized workers in the status quo is fairly small – approximately 10% depending on the exact measure used. However, unionized workers make significantly more (around 30% higher wages) than their non-unionized counterparts, and are 2/3rds more likely to have employer sponsored health care benefits. Many economists argue that since median wages in the US have stagnated in the past several years, especially relative to inflation, that an increase in union membership would be a vital part of boosting middle class growth. It is also important to argue that increased middle class prosperity has been a central component of past periods of growth in the United States. In addition, the Pro should seek to characterize the Con’s arguments against unions as reactionary defenses of elitism, designed to preserve business interests at the expense of the common worker.

The primary argument the Pro should be ready to defend in favor of the EFCA is that it would make it easier for employees to unionize. Many people argue that leaving the choice of whether to acknowledge a union with the employer creates an environment where intimidation and other coercive tactics are frequently used to prevent unionization altogether. There is a wealth of anecdotal and some statistical evidence showing that anti-union activities by employers are widespread, and frequently illegal according to the letter of labor law. These sources argue that “card check” would increase the likelihood of a union election succeeding, improving workers collective bargaining power.

It’s very important for the Pro to point out that the EFCA does not completely eliminate the secret ballot option. Most of the literature opposing EFCA argues in defense of the status quo secret ballot provisions, so arguing that it will still be available helps to neutralize much of the Con’s argument. The Pro must be sure to argue that coercion and intimidation happens under current NRLB procedures, so even if secret ballots are used less frequently under the EFCA, it won’t be worse than the status quo.

DEBATING THE CON SIDE

There are many avenues of attack against the EFCA. First and foremost, the Con should argue that enacting the proposed changes in the EFCA would be detrimental to US businesses, and by extension the whole US economy. There are many who argue that hard-bargaining tactics used by unions in the wake of EFCA would both eliminate the profitability of many businesses forced to pay out higher wages, as well as cause widespread job losses to compensate. Recent prominent studies have concluded that this could result in hundreds of thousands of jobs lost across the US. There are also plenty of authors who argue that unionization is a net drag on growth, and that unions are frequently corrupt institutions which don’t significantly improve middle class livelihoods. The Con should also argue against the other aspects of the EFCA, such as compulsory bargaining – many see these requirements as unnecessarily onerous on businesses.

The Con should also be sure to argue in favor of the status quo secret ballot process utilizing the NLRB. While it’s very easy to find somewhat erroneous evidence arguing that the EFCA eliminates the secret balloting procedure, it is probably best to also argue that even if it is technically on the books, it would be used very rarely by pro-union supporters, ensuring that people were forced into openly voting when they would have preferred not to. This also provides an opportunity to turn the Pro’s arguments about intimidation – many argue that an end to secret ballots would only increase the ability of pro-union forces to intimidate and coerce people into voting for unions against their will. This argument is made stronger by some polls showing that as many as 75% of union members oppose the EFCA.

The Con should also argue against the whole idea of unionization. Besides the economic arguments mentioned above, there are lots of studies which show that unionization is an ineffective mechanism to boost working class incomes, which might make the EFCA an ineffective mechanism to achieve its own goals. There is also an argument made by some that EFCA would simply cause businesses to become more intransigent, fighting harder against unions that the status quo. This backlash could potentially cause even less unionization than currently.

Topic Definitions

1. Employee Free Choice Act is pending legislation regarding union rights

SourceWatch, 2009, “Employee Free Choice Act,” accessed 3/5/09, http://www.sourcewatch.org/index.php?title=Employee_Free_Choice_Act

The Employee Free Choice Act is a piece of legislation which would change federal law with regards to the rights of workers to unionize. Specifically, it would allow employees to form unions by signing cards authorizing union representation, establish harsher penalties for employers who violate employee rights when workers seek to form a union, and institute new mediation and arbitration processes for first-contract disputes. It was introduced in both the House and Senate during the 108th, 109th, and 110th Congress. It passed in the House on March 1, 2007 for the first time, but was filibustered by Senate Republicans in June 2007. In the 110th Congress the Employee Free Choice Act was filed as H.R.800.

2. Serves means to be of assistance to

American Heritage Dictionary, 2006, “serves,” accessed 3/5/09, http://dictionary.reference.com/browse/serves?qsrc=2888

To be of assistance to or promote the interests of; aid:

3. Best means most productive of good

Merriam Websters, 2009, “best,” accessed 3/5/2009, http://www.merriam-webster.com/dictionary/best

most productive of good : offering or producing the greatest advantage, utility, or satisfaction

4. Best Interests means regard for one’s self-interest

American Heritage Dictionary, 2000, “interest,” accessed 3/1/2009, http://www.thefreedictionary.com/interests

Regard for one's own benefit or advantage; self-interest. Often used in the plural: It is in your best interest to cooperate. She kept her own interests in mind.

5. Interests means benefits

Random House Dictionary, 2009, “interest,” accessed 3/2/09, http://dictionary.reference.com/browse/interests?qsrc=2888

benefit; advantage:

6. American people means citizens of the US

Wikipedia, 2009, “The American People,” accessed 3/1/09, http://en.wikipedia.org/wiki/The_American_people

The phrase "the American people" is extensively used in political speeches in the United States. The phrase is also used with prominence by the United States Agency for International Development (USAID) in their logo, self-advertising and activities. Citzens of the United States will identify themselves as American.

Pro

EFCA Will Pass Now

1. The EFCA will pass now with democratic support

Sam Hananel, March 6, 2009, “Top union official is sure card check bill will pass,” Seattle Daily Journal of Commerce, accessed 3/6/09, http://www.djc.com/news/co/12003725.html?cgi=yes

With renewed support from the White House, labor officials said Wednesday they are confident that legislation making it easier to unionize workplaces will pass Congress this year. President Barack Obama offered some of his most supportive comments for the Employee Free Choice Act since he took office, telling AFL-CIO members in a videotaped message Tuesday that he will work to pass the bill.

2. The EFCA has enough support to pass – democratic and public mobilization

Domenico Montaro, March 5, 2009, “Card Check Fight Simmers,” MSNBC News, accessed 3/1/09, http://firstread.msnbc.msn.com/archive/2009/03/05/1822530.aspx

Bill Samuel, AFL-CIO legislative director said on a conference call yesterday that the organization is confident that the bill, which is expected to be introduced in the coming months, has majority support in the House and Senate. (A majority is one thing, since Democrats control both chambers. But filibuster-proof is another story.) But in a real show of confidence, Samuel also said on the call, "I'm confident it will pass the Senate with at least 60 votes." The union used a poll it conducted as proof that there is public support for the measure. The group says 73% of Americans support the measure, which it says would make it easier for workers to bargain with their employers for better wages, benefits and working conditions.

3. Heavy Obama and union support mean the EFCA will pass

Houston Chronicle, March 4, 2009, “Around the Nation,” accessed 3/5/09, http://www.chron.com/disp/story.mpl/business/6294720.html

With renewed support from the White House, labor officials said Wednesday they are confident that legislation making it easier to unionize workplaces will pass Congress this year. President Barack Obama offered some of his most supportive comments for the Employee Free Choice Act since he took office this week, telling AFL-CIO members in a videotaped message Tuesday that he will work to pass the bill. Bill Samuel, the AFL-CIO’s legislative director, dismissed speculation that some Democratic supporters may waver under pressure from business groups.

4. EFCA will be brought back up and pass the house – only question is the Senate

Jason Scott, February 16, 2009, “Union Legislation is expected,” The Sentinel, accessed 3/1/09, http://www.cumberlink.com/articles/2009/02/16/news/local/doc4998e2afa5ecb282585122.txt

The original version of the EFCA passed the U.S. House of Representatives in 2007. It was filibustered at the Senate level, so it did not pass. Both Obama and Vice President Joe Biden were original co-sponsors of the bill. The president has said he does not want to delay passage of the EFCA. Biden said last month he expected the legislation will be acted upon in 2009. Platts expects it will be taken up again this year — maybe in late spring, he said: “I expect it will pass the House. The Senate is the question.”

EFCA Would Boost The US Economy

EFCA will boost the economy – unions help recovery

Ron Lind, president of United Food and Commerical Workers Local 5, February 25, 2009, “Congress should pass,” Milpitas Post, accessed 3/1/09, http://www.themilpitaspost.com/columnists/ci_11783369

It's time to bring to an end the decades of policies favoring CEOs and corporate profits over everyday working Americans that fueled Wall Street to run our country's economy into the ground. Giving workers an opportunity to choose union representation will ensure that our economic system works for everyone. If history is any indication, more union membership will help foster economic recovery by building lasting prosperity. Congress understood that well in 1935 when, in the middle of the Great Depression, it passed the National Labor Relations Act to encourage more Americans to form unions. We should demand that the current Congress have the same wisdom to pass the Employee Free Choice Act and put America back on the path to strong economic growth.

Further unionization would only help the US economy

John Wojcik, staff writer, March 6, 2009, “The Big Lie,” People’s Weekly World, accessed 3/6/09, http://www.pww.org/article/articleview/14771/

The right-to-work-for-less committee also said that giving union “bosses” more “compulsory unionism power” in the middle of an economic crisis is a “prescription for disaster.” It doesn’t take a rocket scientist to know that the most heavily unionized communities are the very places where businesses thrive the most. When people have money to spend the economy flourishes. The anti-union voices have had their way for 30 or more years. The result to our economy is clear now to the vast majority.

3. Experts all agree the EFCA will help rebuild the US economy

EFCA Now, March 6, 2009, “Employee Free Choice Act News,” Cleveland Indy Media, accessed 3/6/2009, http://cleveland.indymedia.org/news/2009/03/35188.php

The Employee Free Choice Act must be signed into law and soon. Recent studies show that it will help rebuild our economy. Leading Economists have all agreed the Employee Free Choice is Key to Rebuilding Economy The statement, signed by 39 of America’s top economists, including two Nobel Prize winners, points to the failure of U.S. labor laws to protect employees’ freedom to form a union and bargain as a major factor in our economic crisis. The statement says in part: Indeed, from 2000 to 2007, the income of the median working-age household fell by $2,000—an unprecedented decline. In that time, virtually all of the nation’s economic growth went to a small number of wealthy Americans. An important reason for the shift from broadly shared prosperity to growing inequality is the erosion of workers’ ability to form unions and bargain collectively.

EFCA Would Boost Workers Wages

1. EFCA is key to the economy – it raises middle class wages

Ron Lind, staff writer, February 25, 2009, “Congress should pass,” Milpitas Post, accessed 3/1/09, http://www.themilpitaspost.com/columnists/ci_11783369

President Barack Obama and the Democratic Congress have taken decisive action in an attempt to bring our country out of the worst economic crisis since the Great Depression. While the economic stimulus package and other measures are good first steps, there is another critical bill pending before lawmakers that will help pave the road to economic recovery by bolstering the ranks of America's middle class. The Employee Free Choice Act will boost the buying power of average Americans and expand the middle class by giving workers a fair choice to form a union and bargain collectively for better wages and benefits. Union members in America earn 30 percent higher wages than non-union workers, and are 59 percent more likely to have employer-provided health care. Studies also show that a dense union workforce in a region or industry also raises wages for non-union workers. The whole economy benefits when there are more union members. With better pay and benefits, more Americans will have the money in their pockets to spend and stimulate our economy.

2. EFCA will boost the economy by increasing wages and unionization

Seth Michaels, staff writer, February 17, 2009, “Acuff,” AFL-CIO Now, accessed 3/1/09, http://blog.aflcio.org/2009/02/17/acuff-grassroots-campaign-for-employee-free-choice-is-just-beginning/

It’s clear that wage stagnation, economic insecurity and the decline of workers’ voice at the workplace underlie the dire economic situation in which we find ourselves—a crisis of debt, sagging demand, job loss and failures in housing and health care. To create a broadly shared prosperity and an economy that’s strong in the longer term, Acuff says, we need to pass the Employee Free Choice Act and restore workers’ ability to bargain for a better life.

3. EFCA will help economic recovery and boost wages and worker benefits

ZP Heller, editorial director of Brave New Films, March 4, 2009, “The Armageddon-Provoking,” Alter Net, accessed 3/5/2009, http://www.alternet.org/blogs/rights/129981/the_armageddon-provoking_employee_free_choice_act/

Now that Hilda Solis is Labor Secretary, we stand a great chance to make Employee Free Choice a reality. Workers will be able to unionize more easily and negotiate better wages, benefits, and working conditions. But we’re still fighting an ideological battle with conservatives, which will only intensify as Employee Free Choice nears a vote. That’s why SEIU continues to roll out great video campaigns like this one: Our country is on the verge of “armageddon,” “nuclear war,” and “the demise of a civilization.” According to CEOs and their front groups, the fabric of our nation may well fall apart, all because of the Employee Free Choice Act. Its opponents no longer debate the merits of the bill, and instead resort to hyperbolic vitriol intended to inflame the public and press. In reality, the Employee Free Choice Act is a bipartisan, common sense economic recovery for working families that will pump billions into our nation’s economy.

EFCA Does Not Hurt US Competitiveness

1. Raising US wages doesn’t hurt our international competitiveness

Tim McCown, staff writer, March 5, 2009, “The Employee Free Choice Act,” Philadelphia Examiner, accessed 3/5/9, http://www.examiner.com/x-3629-Philadelphia-Progressive-Examiner~y2009m3d5-The-Employee-Free-Choice-ActEnding-the-banana-republic-dictatorship-called-work

For years now the only commodity where the buyer sets the price of the commodity instead of the seller is work. This would be like going into Wal-Mart and picking up an item priced at $4.00 and telling the cashier I'm only going to pay $3.00. The Republicans would like you to believe that any increase in the wages of Middle Class America would make American business non competitive in the Global economy.Forget for a moment that the slave wage model is not the only model of globalization, there are two ways you can talk about this. The first way is to point out with weak unions and declining wages for thirty years since Ronald Reagan broke PATCO the air traffic controllers union, we have been losing jobs like a cut artery loses blood with some estimates of 9 million jobs lost by the end of this year Maybe what we need is another model of competition not more wage cuts.

2. EFCA is key to boosting the middle class, which is key to the overall economy

Robert L. Borosage, president of Institute for America’s Future, March 4, 2009, “Obama’s Next Guantlet,” Real Clear Politics, accessed 3/5/2009, http://www.realclearpolitics.com/articles/2009/03/obamas_next_gauntlet_reviving.html

But EFCA isn't just about worker rights. It's about whether we can return to an economy with a broad middle class. When unions represented 30% of the private economy, they won family wages, health care, pensions, paid vacations -- the basics of middle class existence. Rising union wages and benefits helped lift the wages of non-union workers as well. America has never done much redistribution through taxes. We built a middle class because workers were able to win a decent share of the profits and productivity that they helped to generate. Unions were central to that. Naturally, as the unions have lost ground, so has America's middle class. Over the eight years of the Bush recovery, we witnessed the extreme: an economy in which profits were up, CEO salaries soared, productivity was up, but workers lost ground. As a recent EPI statement notes, the median working household lost $2000 in annual income over that period. That reality contributed directly to the inequality, speculation, and household indebtedness that provided the kindling for the economic conflagration we now experience.

3. Boosting middle class wages through unionization will improve US competitiveness

That's why Obama was an early sponsor of EFCA as a Senator. Earlier this month, he noted that he saw unions as part of the solution, not part of the problem. "We need to level the playing field for workers and the unions that represent their interests, because we know that you cannot have a strong middle class without a strong labor movement. .."The American economy is not and has never been a zero-sum game. "When workers are prospering, they buy products that make businesses prosper. "We can be competitive and lean and mean and still create a situation where workers are thriving in this country.'

4. Status quo failure of the economy proves there’s only a chance EFCA can help – unionization is necessary

But this isn't just a union fight. As the president suggests, this is a central fight for an economy that works. If workers are paid decently, families needn't take on massive debts to educate their children or afford their home. Social Security remains secure if workers once more capture a fair share of the profits they produce. CEOs and speculators have a more difficult time cooking the books if they must negotiate with strong unions. To build an economy that works, strong unions aren't the only answer, but they are central part of the answer. The campaign on EFCA will be fierce. Gaining 60 votes won't be easy. The business community will go all out, claiming that strong unions will ruin America, trample workers' freedoms, drive jobs abroad. But we've tried an economy with weak unions -- and that didn't work out so well. Obama is right to tee this up early even as he struggles to get the economy moving, to get the financial system reorganized, to move on health care and new energy. This is a fight that citizens across the country should join. It will be a critical building block of the new economy that we must construct from the ashes of the old.

EFCA Does Not Eliminate Secret Balloting

1. EFCA doesn’t eliminate secret ballot elections, it still gives employees the choice

Ron Lind, president of United Food and Commerical Workers Local 5, February 25, 2009, “Congress should pass,” Milpitas Post, accessed 3/1/09, http://www.themilpitaspost.com/columnists/ci_11783369

Opponents of the Employee Free Choice Act, led by giant corporations like Walmart and The Home Depot, are spending millions of dollars to convince the public that the proposed law would strip workers of their right to have a secret ballot election. That claim is utterly false. The bill merely changes current labor law to give workers, rather than employers, the right to choose between majority sign-up and a secret ballot election to determine support for union representation.

2. EFCA doesn’t hurt employees option of choosing a secret ballot

And if you want to talk about rights you do not have a number of rights in the workplace that you have as a citizen. One is free speech, and if you think you do tell your employer you would like to utilize your right to organize. In the case of some people I have worked with it all boiled down to they held political views that their bosses didn't like. In a right to work state you can be fired at the will of your employer for any reason. You also do not have the right to freedom from unreasonable searches and seizures because they can check your e-mails. You will also find you do not have the right of free association in some work places. Republicans will also argue that The Employee Free Choice Act will deny workers the right to a secret ballot. In fact employee's are free to choose the secret ballot so the issue with Republicans is really that management is not the sole controller of the work place.

3. EFCA doesn’t constrain employee choice – it leaves things up to the workers

John Wojcik, staff writer, March 6, 2009, “The Big Lie,” People’s Weekly World, accessed 3/6/09, http://www.pww.org/article/articleview/14771/

Before I get to the “secret” meetings in Miami, however, it might help to clear up the lies about the Employee Free Choice Act itself. Right now, under the law, unions can be formed when a majority of workers sign cards indicating they want a union or they can be formed after an election in which people vote on whether they want union representation. The company gets to make that choice. If the EFCA becomes law the choice will still be the same — only the workers, not their employers — will make the choice. In addition, it is difficult to believe that bosses who don’t let workers decide even where the water cooler in an office should be placed are suddenly concerned about encouraging democracy at their work places.

4. EFCA leaves secret ballots as an option for workers

ZP Heller, editorial director of Brave New Films, November 25, 2008, “Everything You Ever Wanted,” BNF, accessed 3/5/2009, http://bravenewfilms.org/blog/?p=63872

The Employee Free Choice Act would enable workers to unionize more easily, using collective bargaining to gain fairer wages, benefits, and working conditions. Employers would have to recognize a union when a majority of workers sign union cards, though the current secret ballot system would remain on the table as an option for unionization. This act will go a long long way toward revitalizing our economy and restoring our nation's middle class, which is why President-elect Obama will likely make it a priority when he takes office next year, and why we have created videos, partnered with the SEIU, and dedicated episodes of Meet the Bloggers to this issue.

EFCA Is Key To Employee Choice

1. The EFCA is key to employee choice – it protects their rights to unionize

John Wojcik, staff writer, March 6, 2009, “The Big Lie,” People’s Weekly World, accessed 3/6/09, http://www.pww.org/article/articleview/14771/

The National Labor Relations Act, passed in the Great Depression, said “It is the policy of the government of the United States to encourage collective bargaining.” That remains the law of the land today. The law of the land does not say, “It is the policy of the government of the United States to see to it that people are fired for exercising their right to form a union.” The law of the land does not say, “It is the policy of the United States government to harass workers, force them to attend mandatory anti-union propaganda sessions under penalty of firing and to do everything possible to ensure that they earn low salaries, receive no benefits and get no retirement.” The Employee Free Choice Act became necessary only because, during the period since the passage of the National Labor Relations Act, big business has found a thousand and one ways to subvert what is already the law of the land — the right of workers to engage in collective bargaining. Essentially, the EFCA will guarantee that workers get what they are already supposed to have. The problem for the Right to Work [for less] Committee and Human Events is that they believe workers should be happy with little pay and no rights whatsoever.

2. EFCA makes it easier for employees to bargain for wages, while preserving choice

William Lurye, associate general counsel at AFL-CIO, February 22, 2009, “Pro-Con,” Atlanta Journal-Constitution, accessed 3/1/09, http://www.ajc.com/services/content/printedition/2009/02/22/procon0222.html

The Employee Free Choice Act will make it easier for workers to bargain for better wages and benefits. If a majority of employees decide they do not want an election and sign documents stating they want to be represented by a union, the employer will be required to deal with the union. Or, if the employees decide they want an election about whether the union will represent them, an election will be held. Either way, it becomes the employees’ choice, and not the employers’ choice, how the union representing the workers will be formed.

3. EFCA boosts workers rights and ability to choose

EFCA helps revive the right of workers to organize in this country. Over the last decades, that basic right has been shredded, as companies waged open warfare on union organizing, and administrations often failed to enforce the laws protecting that right. The tactics were bare knuckle: fire the organizers; hold closed door meetings to threaten the workers. And if workers did vote for a union, one-third of employers simply refused to negotiate a contract with them. The campaigns have been brutally successful. Today, over a majority of workers say that they would join a union if given a choice, but only about 7.5% of the private workforce is organized. EFCA gives workers the right to choose a union, either in a closed election or with a majority signing pledge cards. It forces employers to negotiate in good faith, requiring arbitration if no agreement is reached. It stiffens penalties on employers for violating workers' rights.

EFCA Is Key To Encourage Unionization

1. EFCA is key to boost union membership and employee wages

Richard Parker, president Americans for Democratic Action, March 5, 2009, “Are Union Reforms Good,” Atlanta Journal-Constitution, accessed 3/5/2009, http://www.ajc.com/services/content/printedition/2009/03/05/parkered0305.html

If Congress intends to rescue all Americans —- and not just the banks, hedge funds and insurance companies that got us into this economic crisis —- it needs to move quickly to pass the Employee Free Choice Act. Much of the pain on Main Street stems directly from three decades of wage stagnation and decline, not just the reckless abandon of Wall Street. In our report “Income and Inequality,” the Americans for Democratic Action shows how over the last decade the wages of 80 percent of American workers fell behind both inflation and the productivity gains their work won for corporate employers. That means millions of workers had to borrow not for luxuries but just to cover the costs of mortgages, education and health care. Meanwhile, the financial gains from their increased productivity were flowing straight to managers and shareholders. Passing the Employee Free Choice Act would make it easier for millions of people to join unions and collectively bargain for a fairer share of the profits created by their work. Why would this stimulate the economy? Union workers earn 30 percent more than their nonunion counterparts, and are more likely to have employer-paid health care and pensions. Putting more money into the pockets of people who will spend it —- who must spend it —- is the best, quickest and most basic way to stimulate the economy.

2. The status quo is characterized by worker intimidation – EFCA is a better option for unionization

Employer-mandated elections have resulted in workers being illegally fired in a quarter of these election campaigns. Employees are routinely threatened and forced to vote against the union. The legislation also guarantees workers a contract when they form a new union. If an employer and the new union are unable to agree on a first contract, there will be federal mediation. If there is still no contract, the matter is referred to binding arbitration. This eliminates incentives under the current law for employers to stall in negotiations. Instead, good faith bargaining is promoted. The best opportunity for working men and women to get ahead economically is by uniting with co-workers to bargain with their employers for better wages and benefits.

3. EFCA would help boost union membership

Yet, unions struggled to survive not just because of ever-increasing low-wage competition from abroad but also because Washington has made it harder for struggling workers to form a union by making it easier for businesses to use intimidation and outright firing to deny the fundamental right to bargain collectively. Polls report that a clear majority of Americans say they would join a union if one were available. ADA’s study shows that CEO pay has grown over the last 30 years to 411 times that of the average worker. CEOs got this great deal because they signed contracts guaranteeing compensation, benefits and retirement —- the sort of contracts a majority of Americans would like to sign, but lacking collective bargaining power, can’t. There’s a question of fairness here: CEOs would never consider working without a contract, so why should anyone else? Sixty percent of Americans support the Employee Free Choice Act. They elected a new president and solid majorities in both houses of Congress who pledged to make it the law.

American Workers Support The EFCA

1. American workers support the EFCA, they want unions

Ron Lind, president of United Food and Commerical Workers Local 5, February 25, 2009, “Congress should pass,” Milpitas Post, accessed 3/1/09, http://www.themilpitaspost.com/columnists/ci_11783369

Surveys consistently show that 60 million American workers say that they would join a union if they could. In addition to allowing workers to choose the method to determine union representation, the Employee Free Choice Act would increase the penalties against employers that illegally fire or otherwise punish suspected union supporters. It would also provide for mandatory arbitration to resolve a first contract. These provisions would help restore the balance of power between workers and employers that was originally envisioned with the passage of the National Labor Relations Act in 1935.

2. Massive grassroots support for the EFCA

Seth Michaels, staff writer, February 17, 2009, “Acuff,” AFL-CIO Now, accessed 3/1/09, http://blog.aflcio.org/2009/02/17/acuff-grassroots-campaign-for-employee-free-choice-is-just-beginning/

This month, workers from around the country kicked off a national mobilization for the Employee Free Choice Act—a vital bill to restore the freedom to form unions and bargain—by delivering some of the 1.5 million signatures in support of it to members of Congress. But that’s just the beginning of the broad, grassroots campaign to pass the Employee Free Choice Act and make the economy work for everyone again. On the Huffington Post, the AFL-CIO’s Stewart Acuff says that to get past the big-dollar opposition from the corporate interests who created the economic crisis, the campaign to pass the Employee Free Choice Act will need to be a broad, nationwide effort.

3. Huge support for the EFCA among workers – their evidence is propaganda

Seth Michaels, staff writer, February 17, 2009, “Acuff,” AFL-CIO Now, accessed 3/1/09, http://blog.aflcio.org/2009/02/17/acuff-grassroots-campaign-for-employee-free-choice-is-just-beginning/

Support for the Employee Free Choice Act ranges from the millions of rank-and-file workers who signed petitions to economic experts to community organizations and religious groups. The broad coalition for a more just America is lining up behind the legislation and mobilizing its constituencies from the Sierra Club and the Natural Resources Defense Council to community organizations like ACORN to a broad spectrum of people of faith to the Leadership Conference on Civil Rights and the NAACP and hundreds more. The labor movement, led by the AFL-CIO, is pivoting from the million worker demand to grassroots mobilization across America determined to generate hundreds of thousands of handwritten letters, phone calls and face-to-face meetings with members of Congress. While CEOs and high-priced lobbyists are laying out millions to mislead the public, the press and elected leaders in the hopes of maintaining the status quo, workers and their allies are demanding the change our economy desperately needs. The 1.5 million signatures are only the beginning.

EFCA Solves Employee Intimidation

1. EFCA helps solve intimidation problems in the workplace

Will Moredock, February 13, 2009, “Employee Free Choice Act,” Columbia City Paper, accessed 3/1/09, http://columbiacitypaper.com/index.php/News-Commentary/Commentary/Employee-Free-Choice-Act.html

What EFCA would do is put teeth in federal labor law, making it painful and expensive for companies to engage in such intimidation and bad faith practices. And, most importantly, it would simplify the union authorization process by allowing for a simple card check. When a majority of employees sign a union authorization card, the union is brought in to represent the workers. Management is not allowed months to undermine the election process with firings and intimidation.

2. The status quo lets employers undermine union elections and intimidate workers

Will Moredock, February 13, 2009, “Employee Free Choice Act,” Columbia City Paper, accessed 3/1/09, http://columbiacitypaper.com/index.php/News-Commentary/Commentary/Employee-Free-Choice-Act.html

Now the Republicans are fighting to make it harder for workers to organize a union in their workplaces. Under federal labor law, the act of voting in a union is a two step process. First, 30 percent of workers must fill out cards authorizing a union to represent them. Then the National Labor Relations Board will call for a vote among employees. If a majority vote for union representation, the employer must recognize the union and agree to bargain with it in good faith. The time between the “card check” and the election is where it gets dicey for workers. Employers can use various strategies to delay the election for months or even years. They can use the time to put their employees through mandatory anti-union propaganda sessions, to intimidate them and even fire them, if they do not seem to be showing the right attitude. This is illegal, of course, but penalties are laughably mild. Even after workers vote to bring in a union, a company can refuse to negotiate for months or years.

3. Empirics prove employee intimidation is more likely in the status quo than it would be with card check

Bob Geary, staff writer, March 4, 2009, “The union label,” Indy Week, accessed 3/5/2009, http://www.indyweek.com/gyrobase/Content?oid=oid%3A307054

When Taft-Hartley was enacted, Zonderman says, union strength was growing in industrial states, claiming more than 35 percent of the national workforce. Thus, business could argue that they'd become too powerful and a menace to free enterprise. Unions coerced workers into signing cards, business claimed, with intimidation tactics and threats of retaliation. Such claims were mostly a myth, Zonderman says. Nonetheless, the decision about unions was no longer the workers' alone: "Now, the argument was between the employers and the employees." Since Taft-Hartley, labor and business groups have traded fire over the anti-union tactics of employers. Studies by the Center for Urban Economic Development at the University of Illinois-Chicago and by Cornell University economist Kate Bronfenbrenner, labor argues, indicate that employers routinely try to intimidate workers—and frequently violate the law—in the run-up to a union election.

4. Employers use meetings now to intimidate union workers

Bob Geary, staff writer, March 4, 2009, “The union label,” Indy Week, accessed 3/5/2009, http://www.indyweek.com/gyrobase/Content?oid=oid%3A307054

Employers are entitled, under Supreme Court "free speech" rulings, to require that workers attend information sessions (labor calls them "captive audience meetings") at which the company makes its case against unionization. The Illinois-Chicago and Bronfenbrenner studies found that in a majority of union elections, employers illegally threaten to close down, cut wages or move away if workers approve the union. The two studies also found that in one-fourth to one-third of union organizing campaigns, employers were guilty of illegally firing pro-union workers or of showing favoritism, with raises or promotions, to anti-union workers.

Con

EFCA Will Not Pass Now

1. EFCA will not pass now – there aren’t enough votes

Alliance for Worker Freedom, March 5, 2009, “Unions Should Not Be So Certain,” PR News, accessed 3/6/09, http://news.prnewswire.com/DisplayReleaseContent.aspx?ACCT=104&STORY=/www/story/03-05-2009/0004983912&EDATE=

"Based on last year's votes, the bottom line is they simply do not have the numbers at this point to pass EFCA," said Brian Johnson, executive director of AWF. "Let's do the math here: There is no Senator from Minnesota at this point; that gives you fifty-eight Democrats who will likely support EFCA. Senator Specter voted for cloture last year, so that's fifty-nine assuming he doesn't come to his senses. This scenario also assumes that Kennedy is healthy enough to vote and that Burris is still around. Even taking all that into consideration; where's the sixtieth vote?" asks Johnson.

2. EFCA will not pass, despite union lobbying

AWF says they have been lobbying Congress for years on this issue and since December have been engaged in several state-based anti-EFCA grassroots campaigns. "Big Labor may have hundreds of millions of dollars, but they simply do not have the votes," Johnson added. This confidence comes from a combination of polling data and empirical research. A recent McLaughlin Poll shows that 74 percent of union members oppose the card check provisions contained in the Employee Free Choice Act.

3. EFCA won’t pass, despite democratic support

Industrial Worker, February 9, 2009, “Can we rebuild the labor movement,” Indy Bay, accessed 3/1/09, http://www.indybay.org/newsitems/2009/02/09/18569237.php

First, I'm skeptical that it will pass and not just because Obama has appointed a centrist cabinet of former Clinton officials. Labor's betrayal by Democrats and the game of "wait and see, they'll deliver" every time a Democratic president comes to power is a river so deep, you may as well call it an ocean. Barring significant strikes or actions by workers that begin to scare business elites into wanting to offer labor a bone, I don't see this history changing.

4. EFCA will fail to pass again – lack of real Obama support

Richard A. Epstein, Law Professor at Chicago, February 10, 2009, “Obama’s Welcome Silence,” Forbes, accessed 3/1/09, http://www.forbes.com/2009/02/09/card-checks-efca-opinions-columnists_0210_richard_epstein.html

Without doubt, the EFCA would introduce the most avulsive change in labor law since the passage of the National Labor Relations Act of 1935, which made mandatory collective bargaining between management and labor the law of the land. Today President Obama, who has moved hard on many fronts, has maintained a wise and judicious silence on the EFCA. Thankfully, the current bill has garnered somewhat less political support in Congress than it did a year ago when it sailed through the House only to die for the want of 60 votes in the Senate.

EFCA Is On Balance Bad

1. EFCA is on balance bad for America

Workforce Fairness Institute, March 5, 2009, “Card Check Fight,” MSNBC, accessed 3/5/09, http://firstread.msnbc.msn.com/archive/2009/03/05/1822753.aspx

Dr. Layne‐Farrar concludes, “The costs [of EFCA] should be carefully weighed against any purported benefits of passing the Act, all of which appears to benefit some groups at the expense of others. There is no coherent theoretical argument that explains how the higher costs, greater legal uncertainty, and expanded government intervention entailed in EFCA would improve overall social welfare.”

2. The downsides of EFCA outweigh the costs

Anne Layne-Farrar, Director at LECG Consulting, March 3, 2009, “An Empirical Assessment,” SSRN, accessed 3/5/2009, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353305

I find that, while card check union certification backed by mandatory two-year “contract” arbitration could be expected to increase union membership as hoped by EFCA proponents, EFCA is unlikely to achieve its main goal of improving social welfare, which should take into account possible consequences not only for union members but for all other individuals, because the proposed rules would likely have detrimental effects on the unemployment rate and job creation. These are two adverse effects that America can ill afford at any time, but especially at this time of recession. The empirical analysis presented in Section 3 provides the quantitative support for this claim. Starting from the finding in the literature that card check systems do lead to an increase in union density in comparison to an election system, I demonstrate empirically that an increase in union density this year would lead to an increase in the unemployment rate and a drop in the job creation rate in the following year. These results are statistically significant and robust to a number of model specification changes. I believe these results would, if anything, be more significant in America given that the card check system here would be paired with mandatory interest arbitration that removes the initial contract from the parties’ control. I conclude, as a result, that the costs of passing EFCA as currently designed would outweigh any benefit, even if I ignore the costs of transition and administration which properly belong in any social calculus. Specifically, my analysis predicts that passing EFCA would lead to a 1 percentage point increase in the unemployment rate for every 3 percentage points gained in union membership brought about by a system of card checks and mandatory arbitration.

3. Even if the EFCA has some positive economic effects, the negative effects outweigh

Anne Layne-Farrar, Director at LECG Consulting, March 3, 2009, “An Empirical Assessment,” SSRN, accessed 3/5/2009, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353305

The overall picture painted by the extant literature, then, is a mixed one. Unionization can raise worker wages, but may reduce unionized jobs and tends to lower GDP. Greater bargaining coverage maintains real earnings growth, but increases unemployment and inflation. These mixed results do not attend to the differences, if any, across legal regimes, and none of them deal with the heightened level of government intervention posed by compulsory interest arbitrations. As a matter of basic economic theory, the studies in the literature therefore suggest, but in all likelihood underestimate, negative unintended consequences from passing EFCA. The costs should be carefully weighed against any purported benefits of passing the Act, all of which appear to benefit some groups at the expense of others. There is no coherent theoretical argument that explains how the higher costs, greater legal uncertainty, and expanded government intervention entailed in EFCA would improve overall social welfare. Thus the existing literature is informative and provocative, but it is not specific enough to define the full impact of passing EFCA. In order to examine that issue in more detail I turn next to studies on the Canadian experience, which have particular relevance to EFCA.

EFCA Hurts The US Economy

1. The EFCA would undermine the US economy

Workforce Fairness Institute, March 5, 2009, “Card Check Fight,” MSNBC, accessed 3/5/09, http://firstread.msnbc.msn.com/archive/2009/03/05/1822753.aspx

“This study clearly shows how devastating the Employee ‘Forced’ Choice Act would be to our economy. If passed, we would see unemployment rise dramatically and the American people cannot afford legislation that further damages the economy. EFCA puts everything at risk – our jobs, businesses, sacred right to a secret ballot, and right to keep the federal government from setting wages and benefits,” said Katie Packer, executive director of the Workforce Fairness Institute. “Congress must reject the Employee ‘Forced’ Choice Act, which is nothing more than political payback to union bosses who want to increase their membership at the expense of workers, businesses, and the economy.”

2. EFCA would cause mass unemployment

Workforce Fairness Institute, March 5, 2009, “Card Check Fight,” MSNBC, accessed 3/5/09, http://firstread.msnbc.msn.com/archive/2009/03/05/1822753.aspx

The Workforce Fairness Institute today warned Congress not to pass the Employee Free ‘Forced’ Choice Act (EFCA) given a new study by noted economist Dr. Anne Layne-Farrar which reveals every three percentage points gained in union membership through card checks and mandatory arbitration would result in a one percentage point rise in the unemployment the following year. The Employee ‘Forced’ Choice Act would take away a workers’ right to cast a secret ballot in union elections and allow the federal government to impose a contract on businesses which don’t yield to union demands within 90 days. The federal government would be able to saddle businesses with federal bureaucrats dictating workplace salaries, benefits, and rules. According to the new study, An Empirical Assessment of the Employee Free Choice Act: The Economic Implications, an increase of 1.5 million union members in year one would lead to the loss of 600,000 jobs by the following year. Job losses directly attributed to the passage of the EFCA would be equal to the entire population of Boston, MA.

3. EFCA will massively kill jobs, undermining the economy

EFCA does not address job losses in unionized industries. Instead, it hopes to promote union organization by two key steps that in fact pose a mortal threat to the job creation so desperately needed today. No economic wizardry is needed to recognize that the more costly it is to create jobs, the fewer the jobs will be created. Unfortunately, EFCA is a job killer of the first magnitude, as I have shown in an extensive monograph funded--full disclosure--by the Alliance to Save Main Street Jobs.

4. EFCA is unconstitutional and a terrible idea

I have never met any neutral person, liberal or conservative, who has not visibly winced when told what the EFCA provides. I have argued in the Wall Street Journal that the EFCA violates constitutional guarantees of speech, association and property, and will not stop to respond to the misguided criticismof my position here. Let's hope the EFCA never gets to the point where it faces a constitutional fight. Right now, President Obama seems to have prudently realized he cannot maintain any bipartisan support if he tries to force the EFCA into law over the fierce and unrelenting opposition of the entire business community. He's right. This nation cannot endure the successive haymakers of card check and compulsory arbitration into the private sector. How ironic! A libertarian who believes staunchly in freedom of contract in employment markets becomes, in these hard political times, a stalwart defender of the NLRA, warts and all. The Congress and the president should do likewise.

EFCA Does Not Encourage Unionization

1. The EFCA does not achieve social welfare and massively hurts the economy

Anne Layne-Farrar, Director at LECG Consulting, March 3, 2009, “An Empirical Assessment,” SSRN, accessed 3/5/2009, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353305

The Employee Free Choice Act (EFCA), which is pending before the US Congress, would provide for union representation when an employee majority has signed union authorization cards and would create a system of mandatory arbitration if a collective bargaining agreement is not reached approximately 130 days after a union is newly certified. I critically assess the arguments presented for passing EFCA and consider the likely unintended consequences it will generate, should it be passed. I find that while card checks could be expected to increase union membership as hoped by EFCA proponents, EFCA is unlikely to achieve its main goal of improving social welfare, which should take into account possible consequences not only for union members but for all individuals. In particular, my quantitative analysis indicates that passing EFCA would likely increase the US unemployment rate and decrease US job creation substantially. The precise effect on unemployment will depend on the degree to which EFCA increases union density, but for every 3 percentage points gained in union membership through card checks and mandatory arbitration, the following year’s unemployment rate is predicted to increase by 1 percentage point and job creation is predicted to fall by around 1.5 million jobs. Thus, if EFCA passed today and resulted in an increase in unionization from the current rate of about 12% to 15%, then unionized workers would increase from 15.5 to 19.6 million while unemployment a year from now would rise by 1.5 million, to 10.4 million. If EFCA were to increase the percentage of private sector union membership by between 5 and 10 percentage points, as some have suggested, my analysis indicates that unemployment would increase by 2.3 to 5.4 million in the following year and the unemployment rate would increase by 1.5 to 3.5 percentage points in the following year.

2. Lack of EFCA is not responsible for declining union membership

Anne Layne-Farrar, Director at LECG Consulting, March 3, 2009, “An Empirical Assessment,” SSRN, accessed 3/5/2009, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353305

The Decline in Union Membership. As the chart below clearly shows, the percentage of the private sector US workforce that is unionized has declined steadily from a high of over 35% in the mid-1950’s to just over 8% today. EFCA supporters contend that the unions’ steady decline in the US is the result of employer misconduct that has been improperly permitted under US labor law. Yet, the levels of unionized workers have declined everywhere in developed economies, regardless of the labor law regime in effect. For example, Visser analyzed data from 14 developed countries and concludes that private sector unionization across all countries has been strongly declining since the 1970s.4 A key factor in this trend has been the declining employment in heavily unionized industries – e.g., the US auto industry – which obviously has contributed to enormous decreases in union membership.5

3. Even if EFCA increases union membership it won’t achieve it’s own goals

Anne Layne-Farrar, Director at LECG Consulting, March 3, 2009, “An Empirical Assessment,” SSRN, accessed 3/5/2009, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353305

Proponents of EFCA argue that the Act will reverse the downward trend in union membership and thus bolster worker wages and overall social welfare. While I concur that union membership is likely to increase, especially as a result of a switch to card checks from the current system of secret ballot elections, I find that EFCA is unlikely to achieve its primary goal of improving overall social welfare. Any potential increase in some union-represented employee wages and benefits would be offset by other likely effects, including a reduction in jobs overall and an increase in the unemployment rate. These latter two impacts affect the economy as a whole and thus would overwhelm any anticipated wage and benefit increases among the subset of workers that gain union status. The following table summarizes the potential effects that my empirical analysis of Canadian data predicts EFCA could have on the US unemployment and employment rates.

Lack Of EFCA Is Not Key To Employee Intimidation

1. Studies prove employer coercion doesn’t really happen

Anne Layne-Farrar, Director at LECG Consulting, March 3, 2009, “An Empirical Assessment,” SSRN, accessed 3/5/2009, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353305

Alleged Employer Unfair Labor Practices. EFCA proponents also argue that automatic union certification – whenever an employee majority signs authorization cards – means there will be no conventional union organizing campaign and employers therefore will have no time to engage in unfair labor practices (“ULPs”). Unions claim these employer ULPs have improperly dampened union support among employees.11 The findings in a 1985 study by Cooke call those claims in question. Cooke conducted an empirical analysis of campaign-related employer ULPs (defined generally as violations of section 8(a)(1) of the National Labor Relations Act, among other provisions).12 He found that, from the time unions produced a card showing of employee support (used to support an NLRB election petition) to the end of the union organizing campaign, the estimated effect of improper employer opposition was “insignificant and seem[ed] to have little impact on reducing the likelihood of a union victory”. This finding is corroborated by a more recent study by Ferguson (2008), who concludes that during the union campaign “the effect of ULP charges were not statistically significant.”13 This research casts doubt on the EFCA premise that unlawful employer conduct during post-petition conventional union organizing has been responsible for preventing unions from winning NLRB-sponsored secret ballot representation elections.

2. The EFCA would actually cause more worker intimidation in favor of unions

R. Lee Creasman, attorney, February 22, 2009, “Pro-Con,” Atlanta Journal-Constitution, accessed 3/1/09, http://www.ajc.com/services/content/printedition/2009/02/22/procon0222.html

No, the Employee Free Choice Act threatens to eliminate individual workers’ freedoms. A piece of legislation with a misleading name, the Employee Free Choice Act’s passage would represent the most significant change to long-established labor laws in over 50 years. EFCA would eliminate secret-ballot union elections and replace the right to vote with a procedure where a union would represent employees if a majority of employees sign union authorization cards, with little regard for the type of pressure exerted on employees to sign cards.

3. Corporations will use negative information about unions to undermine the goals of the EFCA

Richard Berman, executive director of Center for Union Facts, February 10, 2009, “Employee Free Choice Act may backfire,” DC Examiner, accessed 3/1/09, http://www.dcexaminer.com/opinion/Employee-Free-Choice-Act-may-backfire-on-unions-39358447.html

How eagerly will employees sign unionization cards when they preemptively learn about the corruption permeating unions? The Office of Labor-Management Standards reports an average of two criminal convictions for union corruption or embezzlement of dues every week since 2001. How will unions look when employers start year-round publicizing of the shameful condition of union pension plans? According to government data, none of the largest unions have fully-funded plans. Large union plans are six times more likely to be in “critical status” than non-union plans. (And that was before the current stock market meltdown.) With the UAW/GM debacle still fresh, employers won’t hesitate to trace the clear trajectory from exorbitant promises made to members to debilitating inefficiencies, and job losses. Those unaware of restrictive union driven cultures might withhold their signature when they learn promotions and merit-based pay are often traded for rigid seniority in union shops. A 2005 Zogby poll indicates a majority of Americans believe “employers should be able to provide employees with information about unions and the potential impact of unionizing on their jobs.” And 87 percent of Americans agree that workers deserve a private ballot in a workplace election. Corporations have clear public support for providing this education. But until now there has been no reason to employ an early education program. Labor leaders may soon begin to appreciate the true meaning of “be careful what you wish for.”

Union Members Don’t Support EFCA

1. Union members oppose card check and want ballots to be kept secret

Rhonda Bentz, Coalition for a Democratic Workplace, March 3, 2009, “Mr. Vice President,” accessed 3/4/09, http://www.myprivateballot.com/fs/global:file/article/x2dgmgihmishau/bodyFile/id/xt4vpgbfa11t7v?_c=xtb40o5vsp124o

With media reports indicating that Vice President Joe Biden will use his address before the AFL-CIO’s winter meeting on Thursday to outline the Obama Administration’s game plan on card check, the Coalition for a Democratic Workplace (CDW) urged the vice president to consider the views of the overwhelming majority of union members who are opposed to card check. In polling conducted for CDW in January by McLaughlin & Associates, nearly three-quarters (74%) of union households were opposed to the card check provisions in the Employee Free Choice Act. An overwhelming 88% of union households believed that a worker’s vote should be kept private during a union organizing election, and 85% of union households believed that a secret ballot election is the best way to protect the individual rights of workers when they are deciding whether to join a union. “The American people, including rank and file union members, are strongly opposed to card check because it will strip away worker privacy and put our economy at greater risk,” said Brian Worth, the chairman of the Coalition for a Democratic Workplace. “The Obama Administration would be wise to rethink its support of card check instead of blindly following the wishes of Big Labor.”

2. Even if EFCA does encourage unionization, it will be meaningless passive support – not interested workers

Industrial Worker, February 9, 2009, “Can we rebuild the labor movement,” Indy Bay, accessed 3/1/09, http://www.indybay.org/newsitems/2009/02/09/18569237.php

Mainstream labor's embrace of this aspect of the EFCA is actually the most troubling in my eyes because it represents the same problem that has been plaguing mainstream unions since the passage of the National Labor Relations Act (NLRA) in 1935: trading easier membership gains and labor peace in exchange for the shop floor militancy that can actually fight effectively to win against employers. If unions are able to gain recognition through card check that they wouldn't have been able to do through fighting for voluntary recognition, this drastically increases the likelihood that the large, centrally controlled business unions will be meeting employers at the table with stacks of authorization cards and passive bodies of workers, rather than the well organized rank-and-file committees needed to win. These unions would rely on two year, government-imposed contracts that workers will not be able to vote down and which will bar workers from striking.

3. EFCA won’t actually encourage more unionization – Canada proves

Industrial Worker, February 9, 2009, “Can we rebuild the labor movement,” Indy Bay, accessed 3/1/09, http://www.indybay.org/newsitems/2009/02/09/18569237.php

The largest issue with the EFCA, though, is the use of card checks to gain official union recognition. To join a union, a worker would sign a membership card. If more than 50 per cent of the workers signed cards, the employer would have to recognize the union. While the bill would undeniably make this process easier, I don't think this will lead to the huge membership increases we're led to believe. Canada, for instance, has similar card check recognition and enforced arbitration laws yet it has a declining private sector union rate of about 17 per cent, compared to eight per cent or less in the US. Despite the laws, Canadian companies have continued to effectively use union-busting to prevent workers from organizing and to decertify existing unions at higher rates than new ones can be organized—exactly the same situation as in the US.

EFCA Ends Secret Balloting Hurting Employees

1. EFCA actually hurts employee choice by ending secret ballots

Tony Gagliardi, state director of National Federation of Independent Business, February 22, 2009, “No on EFCA,” Denver Post, accessed 3/1/09, http://www.denverpost.com/opinion/ci_11744297

Like a campaign promise, the Employee Free Choice Act sounds great at first blush. You might think, "Free choice for American workers? I like the sound of that." But you'd be wrong. The cleverly misnamed EFCA will not give employees a free choice. In fact, it will take their freedom and their choices away from them. It should be called the "Employee Forced Choice Act." This radical proposal gives Big Labor the green light to replace the right of employees to vote privately in union elections and replace it with a system known as "card check." No longer needing a ratifying vote, union representatives would only need to persuade a majority of employees to sign authorization cards. Once a union collects signed cards from a majority of employees, the organizing drive is over and that business has now become unionized. This card-check petitioning would take place outside of a workplace and in front of union organizers and those employees who support unionization. Employees would be subject to intimidation, misinformation, and other union tactics that would ultimately pressure them into signing authorization cards. Can you imagine having to vote under someone's watchful eye? The pressure would be incredible. Employees would effectively be robbed of the right to vote according to their real opinions.

2. EFCA forces employees to join unions against their will, destroying their private choice

Tony Gagliardi, state director of National Federation of Independent Business, February 22, 2009, “No on EFCA,” Denver Post, accessed 3/1/09, http://www.denverpost.com/opinion/ci_11744297

As terrible as it is, strong-arming voters by removing their right to a private vote is just the beginning. With the secret ballot out of the way, labor representatives then only have to meet the threshold of a simple majority vote in order to require all employees to join the union, whether they want it or not. Unions can then start charging all employees — pro-union or not — dues, and that means less take-home pay for those who are already struggling to meet the rising costs of living. Will unions be using these dues to benefit workers? More likely, employee dues will be poured into political campaigns and to support political candidates without the approval of the very members who pay the dues.

3. EFCA will cause union intimidation – no built in checks

EFCA's first mistake is to adopt a card-check system that allows a union to sidestep at will any secret ballot election supervised by the National Labor Relations Board. Today, that election takes place only after a highly regulated political campaign in which both the employer and dissident workers have their say about the proposed union. Today, unions win about as many of these elections as they lose. And they often lose because the campaign points out the dangers that unions pose to firm growth and worker job security. Under EFCA, however, the union is certified so long as it gathers, even in secret, cards signed by a majority of workers. The ability of workers to hear both sides is effectively throttled. The union may keep the signed cards even if workers ask for them back. EFCA does nothing to guard against the evident risks of intimidation and misrepresentation by such simple safeguards as card notarization.

EFCA Forces Arbitration Hurting Employees

1. EFCA hurts employee choice by forcing arbitration and federal involvement in private employee affairs

Tony Gagliardi, state director of National Federation of Independent Business, February 22, 2009, “No on EFCA,” Denver Post, accessed 3/1/09, http://www.denverpost.com/opinion/ci_11744297

But that's not all. The "Employee Forced Choice Act" means increased federal government involvement in the personal affairs of employees. If unions and employers cannot reach agreement on employment contracts within a mere 120 days, the union's proposal dictates that the federal government would send in Washington bureaucrats to decide what pay, benefits and working conditions employees should receive — and employees would not be given a vote. How is that free choice for employees? It's not. Once this law is in place, it will also be easy for unions to end merit-based promotions designed to reward employees for a job well done. Instead, promotions and incentives would favor workers with union seniority. That's not the way we do business in Colorado.

2. EFCA undermines employee choice by forcing contract arbitration

R. Lee Creasman, attorney, February 22, 2009, “Pro-Con,” Atlanta Journal-Constitution, accessed 3/1/09, http://www.ajc.com/services/content/printedition/2009/02/22/procon0222.html

Currently, employees vote privately after hearing the issues discussed by the union and the employer. The most compelling reason not to change the current law is that unions have won over 50 percent of the secret-ballot elections conducted in the last decade. EFCA also would dramatically change the way union contracts are negotiated by eliminating an employer’s ability to take a hard stance at the bargaining table. Instead, the details of the contract could ultimately be decided by an arbitrator, not the employees and employer who would be bound to a two-year agreement neither side wanted. A cleverly titled bill, this legislation would prompt many employers to move jobs to other countries. A more apt title for it is “The Job Elimination Act.”

3. Compulsive arbitration gives unions too much power

The harm from the deeply unpopular card check is compounded by an untested and convoluted process of compulsory interest arbitration that kicks in only 10 days after the union is certified. In those negotiations, the union has the huge advantage of surprise. If the parties fail to reach an agreement after 90 days of private negotiation, followed by 30 days with a mediator, the Federal Mediation and Conciliation Service in the Department of Labor will, under rules yet to be determined, issue a decree that binds both sides for two years, politely described as a "first contract" period. Contract has nothing to do with it. Worker ratification is not required for the decree to be binding, and the employer cannot challenge the decree's terms in any court.

EFCA Causes An Anti-Union Backlash

1. EFCA will force businesses to spend all their time on anti-union campaigns

Passage of the Employee Free Choice Act abolishing secret ballots in workplace representation elections will force businesses to devote full-time resources and attention to persuading employees against forming unions. Ford Motor Co. just reported its worst-ever full-year loss. On the same day, Ford also reported that the UAW had finally agreed to end its jobs bank program, which pays unemployed factory workers a near full salary for not working. This raises the question (or answer) of why foreign competition has been so much more successful in building and selling cars at a profit here. Looking and learning from their American counterparts, foreign automakers came to America and immediately launched information campaigns to educate their employees about the costs of unionization. Whatever unrealistic labor terms (the Ford agreement is over 2,000 pages) were offered to employees of the American brands, employees of the foreign brands knew it came at a great cost.

2. EFCA will cause anti-union backlash, undermining its goals

And should the misnamed Employee Free Choice Act (EFCA) pass Congress, we should expect similar information campaigns to be reproduced on a scale more wide and vigorous than ever before. In their forceful campaigning against current election law, union officials have forgotten the basic Newtonian law of every action triggering an equal and opposite reaction. And that may prove to be disastrous. Consider current labor election procedures. If union organizers hit a threshold of employee signatures, a federal agency conducts a secret ballot election, usually within 60 days. In that time period, employees have the opportunity to hear from both sides regarding the pros and cons of unionization. As in a presidential campaign, the campaign window allows people to make the best decision by giving access to all the information about the “candidates.” But your “signature equals your vote” process means a small workplace unit can be unionized overnight. Employers could be blindsided with little chance for informing their employees about the downsides of a union-run workplace.

3. EFCA will encourage employers to go on an anti-union offensive, undermining unionization

In this new environment, enlightened employers won’t sit still while the threat of stealth unionization hangs over them. They will shift from reactive information campaigns to preemptive and permanent campaign mode, much like the transplant foreign car manufacturers employ today. Beginning with hiring orientations, every entering employee will receive an unambiguous image of unions. Subsequent regular meetings, mailings, and casual conversations will be salted with “booster shots,” educating employees about the costs of union influence in the workplace. Labor leaders will have triggered the law of unintended consequences. Companies will access what every politician knows: Negative campaigning works.