Blevins on the EFCA

Posted on Categories Labor & Employment Law

Johnblevins John Blevins (South Texas) had an opinion piece supporting the passage of the Employee Free Choice Act (EFCA) in the Houston Chronicle this past Saturday.

Here’s a taste:

The EFCA . . . would provide employees with an alternate method of creating a recognized union — the “card check.” When a majority of employees signs a card supporting self-organization, a union is formed that the employer is required to recognize. (Card check is allowed under current law, but employers are free to ignore it).

[Joseph] Gagnon’s[, who previously against the EFCA in the same paper] critique of the EFCA is a familiar one, and it goes something like this: By permitting card check, the EFCA would undermine the “truly free” choice that secret-ballot elections provide.

Without the secret ballot, union organizers would allegedly be free to coerce their fellow employees.

In fact, this critique featured prominently in a recent (and absurd) employer-sponsored ad campaign featuring a Sopranos actor posing as a mob boss pressuring employees. Fortunately for us all, the New Jersey crime families have yet to make significant inroads into our nation’s service industries. Sleep tight America.

In all seriousness, Gagnon’s bleak portrait is as imaginary as the Sopranos commercial. The EFCA will not lead to coercion — it will end it.

The most critical point is that current elections are anything but free and fair. They are one-sided affairs dominated by the employer.

Indeed, to call them “elections” is a bit generous given the various forms of coercion that employers can and do apply to influence the vote . . . .

There is also little reason to worry that the EFCA would lead to coercion by fellow employees. Most obviously, unions have strong incentives not to intimidate or alienate employees. If unions lose employees’ loyalty, they can be disbanded in a year. In any event, the reality is that employees have far more to fear from employers who control both their paychecks and working conditions than from their fellow employees.

The broader policy debate about the benefits of unions is, of course, a different question. Personally, I believe that strong unions are the best way to lift wages and to restore a vibrant American middle class that enjoys real benefits. Others disagree, and people can have good faith arguments about these issues. But regardless of one’s position on unions generally, we should not pretend that the modern election system is free and fair. At the very least, the EFCA deserves an honest debate based on the facts.

I and other supporters of the EFCA have made similar points and I have highlighted the degree of coercion employers have over employees in the workplace in advocating for state passage of Worker Freedom Act legislation, which would prohibit employer captive audience meetings.

I similarly don’t see WFA laws as against First Amendment values, as the prohbition does not limit speech, but only the conduct of forcing employees to listen to anti-union invective at pain of losing their jobs.

Cross posted at Workplace Prof Blog.

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