By Richard Haygood, Kilpatrick Stockton Labor Attorney

In their continued advocacy of the Employee Free Choice Act, House Democrats have added a new page on the Education and Labor Committee’s website entitled Myth vs. Fact.  The page lists alleged “myths” regarding the Act, and responds with so-called “facts.”  Regrettably, some of the information presented is far from factual.  We've addressed many of those items in earlier postings. This post will focus on two other items. 

House Democrats claim that rather than abolishing the secret ballot election process, the EFCA gives employees the choice of whether to use a secret ballot or “majority sign-up” process.  But the procedure outlined by the EFCA simply does not offer employees such a choice.  Under the EFCA, when a union files a petition with authorization cards signed by 50% of employees, the EFCA states that the NLRB “shall not direct an election but shall certify individual or labor organization as the representative….”  Thus, the choice of whether to request an election is entirely up to the union whether to request an election with less than 50% of a unit signed up or to push for 50% and avoid the secret ballot process.  

The Committee’s “myth” webpage also claims: “Research has found that coercion and pressure actually drop – from both sides – when workers form a union through a majority sign-up process.”  The arguments used to support this assertion are flawed in a number of respects.  First, it must be noted that under the current law, card-check recognition requires agreement from the employer.  Such recognition typically occurs where the employer has agreed in advance that it will not contest union recognition.  And, since the National Labor Relations Board is typically not involved, it is not surprising that coercion would not be reported to that agency.   Moreover, this argument simply ignores the fact that with card-check recognition there is no campaign period during which the employer and union can both present their position prior to an election. 

The EFCA’s approach to eliminating coercion and pressure is to eliminate balanced communication about union representation altogether.  But the EFCA does nothing to lessen the opportunity for union coercion in signing authorization cards.  Claims by EFCA proponents that in the last 60 years, union coercion has only occurred in “in only 42 of 113 cases” is, quite simply, disingenuous.  In 2005 alone, the NLRB reported that some 5,404 Charges were filed against unions alleging “illegal restraint and coercion of employees.”  While these may not have all been in the context of a card-signing campaign, this clearly shows that labor officials are just as capable or coercion as managers are.  Let us be clear:  Most people in both groups are honest and fair.  But it is unfair for EFCA proponents to focus on the exceptions on the employer side and ignore (or distort) statistics that show that there are bad actors in the other camp too.

Of course, coercion can take many forms.  UFCW Local 7’s public announcement of a plan to pay employees for authorization cards  shows that some unions are willing to use the carrot as well as the stick.