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

Article prepared by Darren Rumack and Brian Caufield. 

As promised, Hawaii Governor Linda Lingle vetoed a bill that would have allowed the Hawaii Labor Relations Board to recognize a union based solely on card checks.

Lingle claimed that card check authorization would be a “poor substitute for the secret ballot and is ripe for abuse.”

Of course, this card check authorization scheme mimics that of the proposed Employee Free Choice Act, which if passed, would do away with secret ballot elections.

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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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Although the Employee Free Choice Act has rightfully garnered much attention for the limits it would place on employers’ abilities to fight union organizing campaigns, organized labor is making a similar push on the state level to restrict employer options during attempts to organize the workplace. 

This blog has posted previous entries regarding state versions of the EFCA here and here, and now comes word of a new piece of legislation in the State of Washington that seeks to limit workplace communications.   The bill would ban employer communications about “matters directly related to candidates, election officials, ballot propositions, legislation, election campaigns, political parties, and political, social, community, and labor or other mutual aid organizations.” This could well limit an employer’s ability to make its case to workers during an organizing campaign.

Its hard to blame organized labor for seeking these changes that would make unionization an easier process for workers. Given the decline of the organized labor movement in this country in recent decades, unions are certainly not the indispensable organization in workers’ lives they once were. 

Really though, while unions have every right to make their lives earlier and to increase their membership, they need to stop hiding behind condescending phrases like “protecting employee’s free choice” or “protecting workplace privacy.” These are power grabs—pure and simple, and has nothing to do with improving the lots of workers in this country.

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As we have stated in previous posts, the EFCA would dramatically overhaul the National Labor Relations Act, specifically by allowing for easier routes to unionization through card-check procedures and by foregoing secret ballot elections.

Should the EFCA be passed, this poses an interesting question: what effect will this have on right-to-work states?

Right to work laws, which are currently in effect in 22 states, prohibit unions from making membership in the union or payment of union dues a condition of employment, either before or after hire.

Generally speaking, right-to-work states are composed mainly of southern states. These states have constantly sought more and more manufacturing jobs from northeastern states, selling companies on their lower unionization rates and lower cost of living. This strategy has paid off as more and more of these jobs have migrated south in recent decades, paving the way for increased economic strength of southern states.

As some of our readers point out, the EFCA, as a federal law, would not change right-to-work laws in those states; however it begs the question, should the EFCA lead to increased unionization rates as expected, will this lead to increased unionization rates in right-to-work states?

This is a situation worth watching, because the EFCA could have a dramatic ripple effect throughout much of the country.

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Gov. Schwarzenegger vetoed California legislation very similar to the Employee Free Choice Act.  The California legislation would have allowed workers to form unions by signing union authorization cards rather than going through a union campaign resulting in an election.  The law would have also increased penalties for labor law violations.

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The State of Massachusetts enacted a modified version of the Employee Free Choice Act. 

On September 27, 2007, Massachusetts Governor Deval Patrick, signed into law a bill requiring recognition of public sector unions when a majority of bargaining unit members sign union authorization cards.  Under this new law, unions have 12 months to gather signatures and can then request certification from the State Labor Relations Commission or from a neutral third party.

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