EFCA Due Process Issue is Being Overlooked
By Richard Hankins, Kilpatrick Stockton Labor Attorney
Many EFCA opponents appear to have assumed that the authorization cards collected by unions will be made available to an employer, who will then have an opportunity to examine those cards and to raise any objections it may have to the National Labor Relations Board before the union is certified. This would seem to make sense. Some have asserted that this would invade employees' privacy and might even put employees at greater risk of management retribution.
For example, Rep. John Kline (R-MN), the Senior Republican on the House Subcommittee on Health, Employment, Labor, and Pensions has stated:“It is beyond me how one can possibly claim that a system whereby everyone – your employer, your union organizer, and your co-workers – knows exactly how you vote on the issue of unionization gives an employee ‘free choice.’”
Similarly, in his WebMemo entitled "Card Checks Would Not Solve Alleged Problems with Union Organizing Elections", James Sherk, Bradley Fellow in Labor Policy in the Center for Data Analysis at The Heritage Foundation makes a similar assumption when he argues:
Even if union activists are right, however, card checks would only make it easier for companies to fire union supporters. Companies do not know how individual workers vote in the privacy of the voting booth, but a union card signed in public is an entirely different matter. If there is a real problem with companies systematically firing workers who want to unionize, then the government should not strip those workers of their privacy and inform employers of exactly who has signed on.
But the EFCA does not provide an opportunity for an employer to review the cards. The bill states:
[W]henever a petition shall have been filed . . . alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative . . . the Board shall not direct an election but shall certify the individual or labor organization as the representative . . . .
Board investigations do not permit an employer to see the cards or to know who signed them. While this might give solace to those who fear employer retribution, it is very troubling to those who would like to believe that due process should be employed.
The current law provides very little opportunity for an employer to challenge the cards that are submitted by unions demonstrating that there is at least a 30% "showing of interest" for an election. The Board's Outline of Law and Procedure in Representation Casesnotes in Section 5-900 [case citations omitted]:
“An integral and essential element of the Board’s showing-of-interest rule is the nonlitigability of a petitioner’s evidence as to such interest. The Board reserves to itself the function of investigating such claims, and in its investigation it endeavors to keep the identity of the employees involved secret from the employer and other participating labor organizations. . . . The Board’s requirement that petitions be supported by a 30-percent showing of interest gives rise to no special obligation or right on the part of employers.’’ [ ]
In keeping with these policies, a hearing officer is barred by the Board’s Rules and Regulations from producing the evidence of interest. [ ], and the Board refuse[s] to supply cards in response to a subpoena. [ ] The manner, method, and procedure in determining the showing of interest is not for disclosure. [ ]
An employer desiring to challenge the validity of cards must come up with evidence of invalidity without actually seeing the cards or knowing who to question about improper tactics.
When a party contends that a showing of interest was obtained by fraud, duress, or coercion, the proper procedure is to submit to the Regional Director any proof it might have. [ ] Similarly, any attack on the genuineness of signatures should be made by submitting available evidence to the Regional Director within 5 days after the close of the hearing. [ ]
When evidence is submitted to the Regional Director which gives reasonable cause for believing that the showing of interest may have been invalidated by fraud or otherwise, an administrative investigation will be made. [ ]
The proof required just to trigger the administrative investigation is substantial, as is illustrated by the following reference from the Board's manual:
Thus, affidavits by more than 70 percent of the unit to the effect that the affiants had not authorized the petitioner to represent them warranted an administrative investigation. Globe Iron Foundry, supra. Compare General Shoe Corp., 114 NLRB 381, 382–383 (1956), in which such denials were from less than 70 percent of the unit.
Without a dramatic change in the Board's procedures, the EFCA will place a tremendous burden on employers who suspect that a union has engaged in improper activity when obtaining signatures. This point is being missed even by those who oppose the EFCA.
workplacehorizons.com
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