Facts about Employee Free Choice Act

Posted Dec. 08, 2008, at 7:07 p.m.

Lately on TV there has been another flurry of ads by a group called “Americans for Job Security.” AJS claims to be concerned that employees are going to lose the right to secret ballot elections during union certification elections if the Employee Free Choice Act, or EFCA, is passed.

AJS was founded by the Chamber of Commerce and its membership consists of individuals and businesses opposed to labor unions. It’s difficult to believe that they are particularly concerned about the prospect of employees not having a secret ballot during union certification elections. Public Citizen (www.citizen.org), says of AJS: “Americans for Job Security is a sham front group that would be better called Corporations Influencing Elections. This group is masquerading as a nonprofit to conceal its funders and the scope of its electioneering activities.”

AJS claims that if the EFCA were passed, employees no longer would be able to vote by secret ballot during certification elections and would be allowed to vote only by authorization cards, a card check process. AJS claims that the employees would be subject to coercion and intimidation by union representatives during the pro-cess. As with most political ads, AJS takes a little fact and stretches it way out of proportion.

In fact, under the present system, employees already use a card check system during certification elections. If more than 50 percent of the employees indicate that they want to be represented by the union, the National Labor Relations Board, or NLRB, can certify that the union is the representative. The employer can challenge the certification if they allege improprieties during the election, and the NLRB then will order a secret ballot election. If during the card check process, more than 30 percent of the employees indicate they want the union to represent them, the NLRB will order a secret ballot election.

If the EFCA is passed, the NLRB will certify the union if more than 50 percent of the employees indicate during the card check process that they want the union to represent them. Under EFCA the employer wouldn’t be able to request a secret ballot election unless fewer than 50 percent of the employees voted in favor of the union or unless illegal coercion was alleged.

If employers believe that the union has committed “unfair labor practices,” such as coercion or intimidation of employees during the election, they can request that the NLRB investigate. The reverse is true if the union believes the employer is guilty of such violations.

There are several other provisions of the EFCA that are far more likely to trouble AJS, the Chamber of Commerce and the business community. Employers now are far more likely to intimidate and coerce employees than are the unions. Employers almost always demand secret elections and then use the election period to intimi-date and threaten employees. A substantial number of employees are fired every year for legitimate union activities. Under the EFCA the penalties for such activities would be substantially increased.

When a union is certified, the employer often refuses to bargain or to even recognize the union. Under the EFCA the union could demand that bargaining on a contract begin 10 days after the union is certified. If the parties can’t reach an agreement on a contract within 90 days, either party can request mediation by a third party. If they’re unable to reach agreement after 30 days of mediation, the NLRB can order a settlement by arbitration.

Basically, what it boils down to is that if the Employee Free Choice Act is passed it will give more protection to employees who wish to be represented by a union. It will cut back on coercion and intimidation by employers. The card check issue is merely being used by employers to deflect attention from the parts of the EFCA that they really oppose — mandatory bargaining, mediation and arbitration.

John H. Frecker of Baileyville is a retired Border Patrol agent, and for almost 40 years has been a member and officer of the National Border Patrol Council, part of the American Federation of Government Employees, the union that represents Border Patrol agents.

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