The Obama administration is pushing again for the adoption of a bill with the misleading title, the Employee Free Choice Act (EFCA). One of its major provisions would make employers recognize unions on the basis of "card checks," that is, cards supposedly signed freely by just over 50 percent of their employees.
Under EFCA, if passed, there would no longer be a secret ballot election conducted by the National Labor Relations Board. Let’s leave aside the obvious, such as how this legislation would invite abuse, peer pressure, and intimidation of employees who were not convinced of the desirability of a union. Let’s ignore the real possibility for forgery and fraud. Here is the irony: although such legislation may actually seem to help union organizing efforts, it may, in fact, backfire badly. Why?
First, employees are accustomed to representative democracy as a fair way to determine issues. Many will be unsupportive of a process that does not allow employees to exercise their own judgment privately about issues as close to them as their own employment. Taking away the secret ballot election conducted by an independent agency of the government will seem to many to be simply unjust.
Secondly, if EFCA passes, employers will get "hard-ball" advice from their own labor attorneys and consultants. (Incidentally, these warnings are already appearing.) Employers are being told that if this legislation becomes law, they must consider year-round, continuous campaigns focusing on the ills of unionization. These consultants will wisely warn the employer to begin regular talks to non-union employees about the high costs of strikes as well as the rigidity of union work rules that make unionized businesses less efficient. Employers will point to high production costs, which will often produce a decline in demand for the products the workers produce. These advisors will strongly suggest that employers talk about the industries of America’s Northeast—automobile and steel—whose uncompromising unions have made these firms uncompetitive, nationally and internationally, and have led to their demise or serious decline.
Employers will inform employees of facts such as only 7.5 percent of the private sector workforce is unionized today; thus, the relatively high level of U.S. wages cannot be the result of unionization. Moreover it will be essential to present information about the misuse by unions of members’ dues to support political candidates whose views do not always coincide with those of the members.
That is what employers will be counseled to do, and they will respond with comprehensive, hard-hitting, year-round campaigns designed to nip unionization efforts in the bud. In other words, EFCA will cause employers to be proactive instead of reactive. Employers will not want to learn that organizing efforts have been afoot only once presented with the 50 percent plus of authorization cards. By that point, there will be no time to counter the union’s claims.
So, EFCA, besides being a "full-employment" guarantee for union-management consultants, may well produce the unexpected consequence of mobilizing perpetual employer anti-union campaigns resulting in fewer union elections being won by unions.
Dr. John A. Sparks is Dean of the Alva J. Calderwood School of Arts & Letters at Grove City College (Grove City, PA), where he teaches business law and Constitutional History. He is a practicing attorney and a Fellow for Educational Policy at the College’s Center for Vision & Values.