Employee Free Choice Act: No Free Choice Or Right To Be Informed

Tuesday, March 31, 2009 - 00:00

Editor: Why do unions need the Employee Free Choice Act (EFCA)?

Braff: Support for unions by employees in the private sector has diminished to such an extent that they are no longer a significant factor in most types of businesses. By eliminating the secret ballot election, EFCA is intended to reverse that trend. Under current law, the employer generally has five to six weeks to tell its side of the story. With the card check approach in EFCA, the employer is deprived of its ability to communicate its side of the story so long as it remains unaware that the solicitation of cards is taking place.

An even more important negative feature of the current secret ballot process from a union standpoint is that it is secret so that the employee is totally free to vote as he or she sees fit. The card check process contemplated by EFCA exposes the worker to intimidation and peer pressure which mounts during the campaign, with the worker being told (honestly or not) that he or she is blocking something that most of his or her co-workers feel would be good for them.

For these reasons, unions definitely prefer not to have a secret ballot election - giving workers a free choice, after hearing both the pros and cons of unionization, has been bad for them. You can be sure that all sorts of pressure will be put on employees to sign union authorization cards.

Editor: Why should workers oppose EFCA?

Braff: Forget the employer. I think that it is terrible to take away the right to the secret ballot on an issue that is so important to employees and their families. Why shouldn't they vote with full knowledge of the consequences? The effect of this legislation is to force people into unions without giving them an opportunity to hear both sides. Some of them will be without a clue as to the other side of the story and they won't hear the other side of the story because the employer will probably not have an adequate opportunity to provide its views - and the union is certainly not going to provide that. I think that it is just a terrible idea.

Editor: You mentioned that under EFCA the employer may have less opportunity to communicate with its employees?

Braff: Yes, under current law there typically is a five to six week campaign period before an election is held. In that period, the employer can make sure that the employees know the facts from the employer's point of view.

Under EFCA, there may be little or no time at all for the employer to disseminate its materials and let the employees know its views. It could just be faced with the cards. So the advice that I am giving to employers is that you need to educate your employees now. Don't even wait until the legislation is passed. Employers should tell their employees now that this legislation is being proposed and, if it is passed, and you sign an authorization card, you will be in a position where you probably will end up losing your right to have a secret ballot choice.

Employees should be advised not to be pressured into signing authorization cards. They should be told that there may be a lot of peer pressure on them to sign authorization cards. Some may be tempted to sign an authorization card just so that the union will stop hounding them.

They should at least be told that signing may result in their losing their right to have a secret ballot choice. It would be best if they were also told now why a union would be bad for them and for the company. Starting now means that the employer can at least plant the seeds so that if it needed to get into campaign mode it could do so very quickly. And you should not let employees forget your message. Follow up with reminders for existing employees - and don't forget new employees so that nobody falls through the cracks.

Editor: What is the union's argument against giving employers an opportunity to tell their side of the story?

Braff: What the unions say is that during the pre-election period, employers engage in unfair labor practices and illegally dissuade employees from voting for the union. They point to the fact that they typically will not file a petition unless they have at least 75 percent of the people signed up, and then they point to the fact that notwithstanding that, they only win 50 percent of the elections.

Under current law, it's no big deal for an employee to sign a card because all it does is pave the way for a secret ballot - it doesn't tell you how that employee will vote after hearing the arguments on both sides. You might equate the signing of a card with signing someone's petition to get on the ballot in a political election. You don't commit yourself to actually voting for that person, but you are simply saying let's give that candidate a chance and then let's see what all the candidates have to say. The current secret ballot process simply replicates what happens in a regular election for political candidates. You have a campaign period with both sides having a chance to tell their story. Under EFCA's card check system there is no guarantee whatsoever that the employer would get to tell its side of the story.

If the unions feel that during campaign, employers engage in unlawful conduct and the existing penalties are not a sufficient deterrent, the appropriate remedy might be to increase the penalties (one of the things that EFCA does, though it is hardly discussed). Eliminating the secret ballot as a remedy for alleged employer misconduct is not logical. It punishes employees!

Editor: Under EFCA wouldn't an employer that had signed a neutrality agreement be particularly disadvantaged?

Braff: Yes. An employer that signed a neutrality agreement has already shot itself in the foot. But even with a neutrality agreement, if there is a secret ballot choice, at least there is a chance that the union would lose for any number of reasons - including the employees receiving information from other sources or sharing previous negative experience with unions - and the campaign period would provide time for that process to take place. EFCA would shorten or eliminate any time for such a process.

Editor: In your practice, have you seen any unfairness either to management or labor resulting from the current secret ballot?

Braff: I have had lots of unfair labor practice charges filed against my clients alleging that they engaged in unlawful activity to try to persuade the workers not to vote for the union. That happens all the time. But the secret ballot mechanism itself has never been challenged in my experience.

After all, the secret ballot election is conducted by the NLRB, an instrumentality of the U.S. Government, which has been involved in this process for 70 years and it knows how to conduct a secret ballot. There is one or more portable voting booths and they use paper ballots. And there is generally just one thing on the ballot. It is very simple and straight forward. People line up to vote; they get their ballot; they mark the ballot in secret and they put it in a box. The ballots are then counted by an NLRB representative and each side has a representative present during the voting process.

Editor: EFCA provides for interest arbitration if the parties fail to agree to a contract after 120 days. What are some of the issues it raises?

Braff: I did a lot of work in New York State involving binding arbitration (interest arbitration) for fire fighters and for police. A lot of groups in the public sector do not have the right to strike and the substitute is binding interest arbitration. This means you have a third party coming in to decide what the terms and conditions of a labor contract should be.

In the private sector, if a collective bargaining agreement can't be negotiated, our free enterprise system generally permits employees to strike and the employer to lock employees out. The free enterprise system contemplates the possibility of economic warfare.

What EFCA does is to bring in an outsider who has had no previous experience with the particular circumstances at the particular plant, doesn't know all the ins- and-outs, and doesn't even know any of the employees. That person is given the authority through the interest arbitration process to impose his or her will on both parties.

What tends to happen in interest arbitrations is that the arbitrators look for comparable situations. They try to pigeonhole each employer into a group of what they call comparable other employers. They then conclude that if it was good enough for employer X, then it is good enough for you. But "comparable" is in the eyes of the beholder. Furthermore, what if the employer or the employees do not want the same terms and conditions as so-called comparables.

In our free enterprise system, it is really crazy to have an outsider dictate what the terms and conditions are going to be. This could put an employer out of business. And the way that EFCA is written, the employer has no recourse.

Please email the interviewee at jbraff@cozen.com with questions about this interview.