By Richard Hankins, Kilpatrick Stockton Labor Attorney

In an earlier posting, (Statistics Cited by EFCA Proponents), we addressed the misleading statistics cited by EFCA supporters. A new number has now become a favorite of the Bill’s proponents: 31,000. This is alleged to represent the number of workers who, in 2005, “received back pay because of illegal employer discrimination for their union activities.”

This number -- quoted as gospel during the February 14, 2007 mark-up session -- is cited as conclusive proof that employee rights are routinely trampled and that they somehow need the assistance of union officials to register their interest in union representation. Of course, the number is wrong.

• Unionized employers are forbidden from making certain changes in the workplace without first negotiating in good faith with the union. When employers implement such changes without first bargaining to impasse, the National Labor Relations Act requires a return to the status quo ante while bargaining occurs. Thus, for instance, an employer who attempts to cut costs by shortening workdays or workweeks without first meeting its duty to bargain can be required to pay back wages as though employees had worked those hours during the period that the employer should have been bargaining.

• Many managers are not aware that the National Labor Relations Act protects an employee’s right to discuss his or her salary with co-workers. A significant number of ULP’s involve employees who are suspended or discharged for doing so, and the Board routinely advises the employer of this error and negotiates a settlement that includes back pay even where there is no union organizing activity occurring.

Of course, not all cases are that innocent.  Some employers do discriminate against union activists. But most U.S. businesses diligently strive to comply with the law.

Not even the National Labor Relations Board claims that the number of employees unlawfully mistreated because of union activities is as high as EFCA proponents suggest. The Board reported that only 8,047 Charges asserted illegal discharge or other discrimination against employees. (2005 NLRB Annual Report, p. 15) Granted, a Charge can address multiple individuals, and the Report does not indicate how many individuals were encompassed by those Charges. However, illegal discharge remedies include not only back pay but also an offer of reinstatement. The Report reveals that 2,008 offers of reinstatement were made. (2005 NLRB Annual Report, p. 13). Even if all 2,008 instances involved discrimination because of union activity, that is a far cry from the inflated number disingenuously cited by the EFCA proponents to suggest wide-spread termination of union supporters.

Playing fast and loose with numbers is common in politics. But it is often misleading. For example, in addition to the above-described statistics, the Board’s Report reveals that some 5,405 Charges were filed against unions alleging “illegal restraint and coercion of employees” and 594 Charges alleged “illegal union discrimination against employees.” (2005 NLRB Annual Report, p. 15). One could accurately state that well over half of the unions in the AFL-CIO and Change to Win coerced or discriminated against employees. But the inference such a statement would create would be no more fair than the claims being made against management in the EFCA debates.