Blog of law articles

Sometimes the spin is so wretched you are afraid your head will explode. How many times have you read about the "Orwellian" named Employee Free Choice Act? How many times can you read a piece from a group called the Workplace Fairness Institute? Oops, not that WFI, this Workplace Fairness Institute, an entity set up to trash EFCA and unions. EFCA has little or nothing to do about free choice, more after the jump

it would change the method necessary to permit employees to engage in collective bargaining with their employer. Under the current system a majority of the employees in a bargaining unit must select union representation. Absent an agreement to the contrary, an employer has the right to insist that the selection is done by a secret ballot election conducted by the National Labor Relations Board. The union must win a majority of the valid votes cast before it has the right to represent all of the employees in the bargaining unit. Under EFCA an employer would have to bargain with a union, and all employees in a bargaining union would be represented by a union if a majority of those employees signed a petition, or authorization cards expressing a desire for union representation. Because this process of establishing majority rule would not involve employer participation, or supervision by the NLRB, there are legitimate concerns about coercion and corruption. Doubtless the process would make it far easier for unions to impose their will on bargaining units. Doubtless also it would reduce dramatically an employer's ability to communicate the case against unionization. The likely result is increased unionization. Neither approach to determining majority status is either free or forced. The current system heavily favors employers opposing unionization by affording them a period of time to aggressively dissuade their employees from choosing unionization. The proposed system would make it easy for unions to convince workers to sign up, before anyone could communicate the down side to unionization, and there is a very real downside in some cases.

Now back to the head spinning. The process for airline and railway workers to select unions also involves an election. That election is supervised by the National Mediation Board (NMB). For years the rules have required a union to receive affirmative votes from a majority of the eligible voters, not a majority of the actual votes cast. You would think that supporters of the current NLRB selection process (union must obtain a majority of the actual votes cast) would not object too strenuously to the NMB's change to that system, away from the distinctly un-democratic system that automatically counts a non-vote as a vote against the union. That is not the case with the Workplace Fairness Institute. Its executive director recently posted "Obama's job-killing agenda" on The Hill blog. The target is the MNB's change to the NLRB's method of determining majority support. The same methodology WFI praises when attacking EFCA. The lead sentence is astonishingly disingenuous. "Airline and railroad employees will soon be forced into joining labor unions thanks to a shocking decision by the National Mediation Board." Forced huh? Sort of like the Employee Forced Choice Act Ms. Packer and WFI write about here, here and here. Its fairly shameless to attack the NMB decision when pretty much what it does is adopt the current NLRB method praised by opponents of EFCA, including Ms. Packer.