Argument: EFCA card checking campaigns can be unreliable and illegitimate

Issue Report: Employee Free Choice Act


James Sherk and Paul Kersey. “How the Employee Free Choice Act Takes Away Workers’ Rights”. Heritage Foundation. 23 Apr. 2007 – Organizing Without Majority Support. Card-check campaigns expose workers to union threats and harassment and pressure them to commit after hearing a one-sided union sales pitch. Cards collected under those circumstances often do not reflect employees’ free choice. Consequently card-check allows union activists to organize plants where a majority of workers oppose the union.

For example, Metaldyne Corporation agreed to allow the UAW to organize its workers with a card-check campaign in exchange for concessions at the bargaining table. The UAW soon collected union cards from a majority of workers, and Metaldyne agreed to recognize the UAW as its employees’ rep­resentative. Soon afterwards, a majority of the com­pany’s workers submitted a signed petition stating that they did not want a union and requesting that the NLRB decertify their union.[16] The signed union cards did not reflect the employees’ true preferences.

Unions Know Card Checks Are Unreliable. Despite their public arguments in favor of the EFCA and card checks, union organizers candidly admit in private that card checks do not reflect workers’ true beliefs. Union organizing manuals have long cautioned organizers that a worker’s signature on a union card does not mean that he or she wants to join a union or will vote for the union in the elec­tion. The AFL-CIO’s 1961 Guidebook for Union Organizers states:

NLRB pledge cards are at best a signifying of interest at a given moment. Sometimes they are signed to “get the union off my back”… Whatever the reason, there is no guarantee of anything in a signed NLRB pledge card except that it will count towards an NLRB election.[17]

Union organizers also acknowledge that a card-check campaign allows them to organize work­places without workers’ majority support. United Food and Commercial Workers organizer Joe Crump openly admits that with card check, “You don’t need a majority or even 30% support among employees.”[18] Crump instructs organizers not to worry that aggressive campaigning for a company to skip an election might turn workers against the union, because “if you had massive employee sup­port, you probably would be conducting a tradi­tional organizing [election] campaign.”[19]

Metaldyne was not an unusual case. Unions reg­ularly submit publicly signed authorization cards from a large majority of a company’s workers only to see the workers reject the union in the privacy of the voting booth. In a study of organizing campaigns, the AFL-CIO admitted that “it is not until the union obtains signatures from 75% or more of the unit that the union has more than a 50% likelihood of winning the election.”[20]

Peter Kirsanow. “Employee Free Choice Act and Joe the Plumber”. National Review Online. 28 Oct. 2008 – Employee Free Choice Act and Joe the Plumber [Peter Kirsanow]

Proponents of the Employee Free Choice Act (“EFCA”) maintain that card check unionization will protect employees from the alleged employer coercion and intimidation that accompanies secret ballot election campaigns. This, say proponents, is why card check better protects an employee’s free choice than the present system of secret ballot elections supervised by the National Labor Relation Board.

Let’s examine that proposition using Joe the Plumber (not Joe Wurzelbacher. I don’t know where he stands on EFCA, although I have a hunch).

The Union targets Joe’s employer for unionization. There are 100 employees in the proposed bargaining unit, so under EFCA the union only needs to convince 51 of them to sign authorization cards for the union to be certified as the collective bargaining representative for all 100.

The Union leaders are pretty sophisticated at organizing. After all, it’s what they do. Pretty quickly they identify both the employees most receptive to unionization as well as those most opposed. Joe falls into the latter group so the Union never even attempts to get him to sign a card. In fact, since most of the pro-union employees work a different shift, Joe’s not even aware a union drive is going on.

The Union gets 51 employees to sign cards and gets certified by the NLRB as the collective bargaining representative for all employees — including Joe, who had absolutely no say in whether he wanted a union.

The Union and Joe’s employer begin negotiations but can’t get an agreement within 120 days. Under EFCA, a government-appointed arbitrator then writes the “contract”. The arbitrator puts a union security and dues check-off clause in the “contract”, thereby requiring Joe’s employer to deduct $45 a month from Joe’s paycheck and remit the amount to the union. The arbitrator also orders Joe’s employer to pay a 5% wage increase — an amount that squeezes the employer’s margin. The employer considers lay offs to avoid losses. Joe is near the bottom of the seniority list.

Under EFCA, the arbitrator’s order is binding for two years. Joe and his co-workers can’t reject it. Joe’s company can’t reject it.

Let’s review: Joe had no choice in being represented by the union. He had no choice in paying union dues. He had no choice in accepting the arbitrator’s order that might lead to his lay-off.

Joe concludes that the correct title is the Employee No Choice Act.