Editor’s Note: Organized labor’s top legislative goal this year is passage of the federal Employee Free Choice Act, which would allow formation of a local labor union branch if a majority of employees sign union cards. Opponents, who favor continued secret ballots, say the act would invite undue peer pressure to sign a union card. President Barack Obama supports EFCA, but Democrats are short of the 60 Senate votes needed to assure its passage. Here are views, pro and con.
The EFCA would essentially eliminate secret ballot elections in which employees vote on whether they wish to be represented by a union. Instead, the issue would be decided by whether a majority of employees signed cards authorizing union representation. Under the EFCA, employees could easily be intimidated to sign union cards — particularly since every employee’s view (pro or con) would be known to the organizers.
That’s why several Congressmen, including Democratic supporters of the EFCA, wrote to the Mexican government in 2001 encouraging “the use of secret ballots in all union recognition elections” because “we feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose.”
Similarly, George McGovern, the Democratic nominee for president in 1972, has opposed the EFCA, stating that working Americans should have the right to vote in a secret ballot election “free of intimidation and coercion from all sides.”
The EFCA requires that if a union and an employer cannot agree on a contract after 120 days of negotiations, the matter would be referred to binding arbitration for resolution. The use of binding arbitration could easily undermine, rather than support, the collective bargaining process, because unions could refuse to make the type of compromises required by true negotiations and instead turn to an arbitrator to give them what they want.
In addition, arbitration could produce unworkable contracts, because the process would not allow an arbitrator to truly understand the competitive pressures and other complex business concerns which support the employer’s position.
The concerns raised by the EFCA are not pro-union or anti-union. They relate to what constitutes a fair process for protecting the rights both of employees and employers.
Richard Voigt is a labor and employment law partner in the Hartford office of McCarter & English.