Employee Free Choice Act Lawyer & Attorney : Fox Rothschild Law Firm : Brian A. Caufield

Article prepared by Darren Rumack and Brian Caufield.

For all the talk amongst labor unions about the importance of passing the EFCA and supporting pro-union candidates, unions have neglected to share one bit of information--the EFCA appears to be a hugely unpopular piece of legislation in some states. 

According to polling data presented by the Coalition for a Democratic Workplace, nearly two-thirds of voters in Colorado (68%), Maine (72%) and Minnesota (65%) oppose the passage of EFCA, and legislation that would eliminate private ballots in favor of card checks.

In what is sure to be a hotly contested election, the EFCA may become political dynamite for politicians who support the bill’s passage, particularly as awareness of what the EFCA actually entails grows amongst the electorate. 

Once again, the EFCA will be an issue to watch for this fall, and could become a bigger issue than anticipated in many swing states. 

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Article Prepared by Brian Caufield and Darren Rumack

The debate over the Employee Free Choice Act (“EFCA”) has heated up once again, as the Senate Appropriations Committee held a hearing addressing complaints over the NLRB, and the potential passage of EFCA.

The debate broke down into two camps: on one side, those who oppose the drastic overhaul that the EFCA would bring to private sector labor relations. This group includes past and present NLRB board members, who favor more incremental reforms at this stage.

Current NLRB chairman, Peter Schaumber came out against this complete overhaul of the system, stating that both the Board, and the NLRA have “proven to be remarkably flexible and adaptive over many years.” 

On the other hand, a vocal contingent of EFCA supporters also attended the hearing, arguing that employers use scare tactics to pressure employees into rejecting unionization.

Perhaps the most memorable quote of the hearing came from Alan Hart, the managing editor of UE News, which is the newsletter for the United Electrical, Radio and Machine Workers of America. Hart compared the unionization process to the notorious Abu Ghraib prison, stating that “employees are taken into rooms for interrogations and intimidation, this is almost Abu Ghraib-like procedures we’re seeing these days.”

Union histrionics aside, it is clear that after a brief lull over the winter months, this contentious piece of legislation is going to be in the news once again. 

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The Pennsylvania Democratic State Committee has come out firmly in support of labor unions when they voted to endorse the Employee Free Choice Act. This should not comes as a surprise to anyone following the 2008 election campaign given that every Democrat Presidential Candidate has also issued their blanket support for the EFCA. However, the lack of internal debate over the EFCA is disconcerting.

As this blog has discussed on numerous occasions, the EFCA would dramatically overhaul private sector labor relations in this country on a scale not seen since the passage of the National Labor Relations Act itself. 

The fact that there has been little internal discussion by the Democrats over the EFCA’s potential effects is a prime example of the power of union endorsements for elections overriding the need for serious discussion over the EFCA’s ramifications. Should the EFCA ever be passed into law, it is unlikely that any serious debate will accompany the legislation.    

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On December 13, House and Senate Democrats held a joint subcommittee hearing, criticizing the National Labor Relations Board for a spate of decisions that the Democrats claim undermine workers’ rights to unionize. 

The Democrats voiced their concern over a spate of cases the Board has issued in recent months, including the Dana Corp. decision which has been discussed extensively on this blog.

Sen. Edward Kennedy stated that the Board “is no longer fulfilling its responsibility to protect the voice of American workers.” Kennedy also claimed that the Board has engaged in “an unprecedented rollback” in the protection of workers rights during the past five years.

Given the appointment process of Board members, the NLRB is an inherently political organization, and can be an easy political target. At the same time, the Board is charged with interpreting and ensuring compliance with the NLRA. Recently, Congress and unions seem more preoccupied with blaming the Board for widespread union woes in the country, when in fact, unions should be looking inward to examine their own shortcomings in appealing to workers instead.    

Although this hearing was likely a one-time event, expect to hear more about recent Board rulings affecting union elections, especially as the Presidential Primaries gear up in the next few weeks. 

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AFL-CIO President John Sweeney lambasted President Bush at the first-ever global summit on organizing at the National Labor College in Silver Spring, Maryland.  Sweeney stated that:

President Bush and his cronies have done all they can to destroy workers’ rights around the world. The truth is until we are able to restore basic workers’ rights in the United States, the worldwide decline will not stop. 

Sweeney’s solution: the passage of the Employee Free Choice Act . Apparently, in the AFL-CIO President’s mind, a restoration of workers’ rights involves the removal of the very basic right to a secret ballot election. 

The AFL-CIO seems unable to recognize that workers’ rights are not the same thing as union organizing successes. Perhaps their lack of concern for workers’ free choice is one of the major reasons that private sector unionization raters are at an all time low. 

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AFL-CIO National Organizing Director Steward Acuff is railing against the hijacking of the National Labor Relations Board by “by the corrupt corporate and radical right-wing forces,” supposedly backed by President Bush in a bid to deny the election of ‘progressive’ politicians. 

Acuff’s bone of contention is 61 decision handed down by the Board this fall that he claims “further restrict and weaken already shamefully weak and ineffective workers rights in America.”

Acuff seems to object mainly against the Board’s decision in Dana Corp., which as discussed in previous posts, offers a firm rebuke by the Board against the EFCA, and its would-be allowance of card-check recognition for unions.

It is articles like this that show how out of touch union organizers are with rank-and-file workers. Contrary to Acuff’s belief that secret ballot elections deny workers’ their right to unionize, elections protect a workers' free choice, by allowing them to make a selection by secret ballot free from any immediate pressure or coercion.

Apparently, the AFL-CIO is unable to distinguish between workers rejecting unionization on their own accord with some vast unidentified conspiracy to deny workers their right to unionize.  

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The Employee Free Choice Act might currently be stalled in Congress, but that has not stopped some legislators down in Rocky Top to send a request to their Senators to vote for the EFCA. Nashville Metro Council is planning on sending a request to Tennessee Senators Lamar Alexander and Bob Corker to vote for the Employee Fee Choice Act.

Ironically, Tennessee as a right-to-work state has benefited tremendously from the low unionization rate in the state. The passage of the EFCA, which would make it far easier for workers to form unions would likely have a detrimental effect on the state's economic growth.

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With the Presidential Primaries just around the corner, Democrat candidates are jockeying for support amongst national labor unions. On the heels of John Edwards’ impressive support from unions, Barack Obama has begun openly courting support from other unions in Iowa.

In a recent speech in Iowa, Obama highlighted his plans for the union movement in America, stating:

We're ready to take the offense for organized labor. It's time we had a President who didn't choke saying the word "union." We need to strengthen our unions by letting them do what they do best - organize our workers. If a majority of workers want a union, they should get a union. It's that simple. We need to stand up to the business lobby that's been getting their friends in Congress and in the White House to block card check. That's why I was one of the leaders fighting to pass the Employee Free Choice Act. That's why I'm fighting for it in the Senate. And that's why we'll make it the law of the land when I'm President.

In what is likely to be a very close race for the Democratic Party nomination, successful candidates will need en masse support from unions to turn out the vote on primary day. With unions declaring the EFCA to be their number one priority in the 2008 elections, Democrat candidates are forced into the position of supporting this legislation in order to get elected, making the threat of its passage all the more real.

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Although the Service Employees International Union (SEIU) announced that it would forego endorsing a presidential candidate on a national level, Service Employee International Union chapters in twelve states have endorsed the candidacy of John Edwards.

John Edwards has already received endorsements from SEIU chapters in the two crucial primaries’ states of Iowa and New Hampshire. Edwards has been one of the primary supporters of the Employee Free Choice Act, which unions have declared as be their primary issue in the 2008 election.  

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As the 2008 presidential campaign heats up, so does the campaign to pass the Employee Free Choice Act. However, the National Labor Relations Board is staying far away from this hot topic. 

The NLRB's General Counsel, Ronald Meisburg, said that his role precludes him from taking sides on labor issues.  “We don’t grind an ax,” Meisburg said last week. “We don’t care who wins. It’s important we leave alone the partisan political battles on Capitol Hill.”

The EFCA is currently stalled in the Senate after being passed in the House of Representatives, but is expected to loom large during the 2008 election campaign.

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The NLRB's decision in Dana Corporation is, among other things, a direct rebuke to the pending legislation, the Employee Free Choice Act, which would allow the NLRB to certify a union as the employees’ exclusive bargaining representative without holding an election, if the Board finds that a majority of an employer’s employees have signed union authorization cards. 

Please view the Fox Rothschild Alert regarding Dana Corporation. 

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The AFL-CIO announced plans to spend $53.4 million on grassroots outreach in the 2008 election cycle to back political candidates that support "workers' issues," such as healthcare and the Employee Free Choice Act (EFCA).

With the AFL-CIO emphasizing the passage of the EFCA, this is sure to be a big domestic issue in the upcoming elections, with a greater focus on unions and the workplace than there has been in recent election cycles. 

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With the Presidential Primaries just around the corner, candidates have taken sides on the EFCA. The three leading Democratic candidates, Hillary Clinton, Barack Obama and John Edwards have all come out in favor of passing the EFCA if elected.

In contrast, all Republican candidates are on record as opposing passage of the EFCA.  The five Republican candidates who are members of Congress all voted against the Employee Free Choice Act this year, and three other candidates—Vanderbilt Law alum and former Senator Fred Thompson, former Massachusetts Gov. Mitt Romney and former New York Mayor Rudy Giuliani—all have expressed their opposition to the EFCA. 

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