Choices about Choices

Proposed bipartisan legislation, introduced in both houses of congress this March, called the Employee Free Choice Act (H.R. 1409, S. 560), that would amend the National Labor Relations Act, has both employers and unions scrambling for employee opposition or support of the bill.
The EFCA, which leans in favor of unions, would, as the bill is written, “amend the National Labor Relations Act to establish an efficient system to enable employees to form, join or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.”
Two local law firms, one on either side of the issue, spoke to Tulsa Business Journal about their positions on the bill and why they think it would be either good or bad for business.
Dan Morgan and W. Kirk Turner of Newton O’Connor Turner & Ketchum, 15 W. Sixth St., Ste. 2700, which boasts six lawyers who concentrate in labor and employment, represent both unionized and non-unionized companies and say that the EFCA would be detrimental to business and employers, both in Oklahoma and nationwide.
Their three major concerns with the bill are its removal of the secret ballot process in union organization, independent mediation of contracts between unions and employers and increased penalties on employers.
Morgan said that employees’ needs for labor unions have gone down due to increased legislation protecting workers, the costs of belonging to a union and better education of employers.
“The last figures I saw said that something like 7 to 9 percent of the workforce is unionized. It was up to 36 percent at one point many years ago, but there’s been a steady decline,” Morgan said.
The Other Side of the Coin
Steven Hickman, senior partner with Frasier, Frasier & Hickman LLP, which represents many labor unions in Oklahoma and the region, said that the decline in union membership is due to employer coercion of union supporters.
“The disadvantage with the current system is that, after employees have signed union cards, it’s announced to the employer,” said Hickman. “The employer then takes the employees aside one at a time and talks to them and tell the employees they’ll lose their job if they join a union. They turn everyone around because they fear for their jobs.”
According to law, unions must get 30 percent of a workforce to sign union authorization cards before they may petition the National Labor Relations Board. Within 30 days of petitioning the NLRB, a secret ballot election is held, with more than 50 percent of votes require for union representation to be enacted.
Under the EFCA, the voting process would do away with the secret ballot election, requiring instead more than 50 percent of employees’ signatures on union authorization cards, making it easier for union representation to be enacted. The EFCA is commonly referred to as the “card check” legislation.
“The secret ballot process is just like the one our senators and our representatives have to be elected,” said Morgan. “They sure wouldn’t agree to have an election based on voter cards. That’s where it’s kind of ironic that they would enact this type of legislation. (The secret ballot) is good enough to protect them in their election but not good enough to protect employers and employees.”
Another provision of the bill would impose mandatory arbitration between the employer and the union after 130 days of negotiating.
A Matter of Negotiation
Current law states that employers and unions do not have to agree on anything, but merely “bargain in good faith,” according to Turner. That means that contracts between unions and employers can sometimes take years to finalize. According to the proposed EFCA, following 130 days of negotiations, a government mediator can come in and impose a contract.
“Basically, you have government employees coming in and deciding what the company should pay to employees, which automatically means they are determining what a reasonable return on investment is for your company,” said Morgan. “They’re basically making those business allocations that free enterprise gives to business owners. It’s giving a lot of power to the government that’s never existed in this country in any other format. It’s a radical departure from the way the free enterprise system works.”
Hickman said that employers and company management, once union representation has been certified in their companies, intentionally delay negotiations with the hope of wearing out union interest.
“A good recent example of that is with the nurses at Hillcrest Medical Center,” Hickman said. “The vast majority of nurses signed cards for authorization of a union. But when the vote came around, it lost by five votes. The union proved that the hospital used methods to dissuade votes, and the NLRB granted it another vote, which passed.
“It’s been two years since those nurses voted for the union, and they’re just now reaching an agreement on a contract and just now being certified.”
Hickman said the bill would force employers to come to an agreement with unions in a timely manner and prevent them from discouraging employee support of unions.
“Hillcrest is a case in point,” said Hickman. “The Employee Free Choice Act gives employees a more even playing field. In the last few years, it’s been almost impossible to get anywhere in organizing a union.”
Morgan and Turner say that the provision, rather than providing an even playing field, would take company control away from its owners.
“The new act, if it passed in its current form, would require, after about 130 days, that there be a mandatory arbitration of that dispute, meaning that people who don’t know anything about your company, who don’t know anything about this union, who are employees of the Federal Mediation and Conciliation Service, which is a government agency, are going to come in and listen to both sides and they’re going to make a decision on that contract. It’s a forced, minimum two-year contract,” said Turner.
Ramping Up Penalties
The final major point of the bill would be harsher penalties for employers who violate labor laws. Morgan and Kirk said that the penalties rest unfairly on the employers but that unions who break the law are not penalized.
“It would increase the penalties —but only on employers. Right now the law is set up to where it’s fairly equal,” said Morgan. “If a person is terminated illegally because of their support of a union, they can be reinstated with back pay so they’re made whole.”
The EFCA would require they be paid triple damages or three times what they’re owed.
“There are provisions that there can be a $20,000 penalty for each violation (of a labor law) by a company, but not by a union,” Morgan said.
Hickman said enactment of the law is important in order to keep fair and dignified labor practices in the U.S. He said the unions keep employers accountable, even those whose companies are not unionized.
“The fact that employees stand together means they can be treated with dignity. The continuum is from zero to 10 of all employers. In all periods of human history there have been employers who have treated employees well and ones who haven’t,” Hickman said. “Unionization takes the average of that across the spectrum and bumps it up. If we didn’t have unions, people wouldn’t be treated with the dignity they are now.”
Morgan and Turner expressed a concern for further outsourcing of American companies overseas if the EFCA passes.
“Why would anybody do business in the U.S.? Why would you put your money at risk if a government person could come in and tell you how much you can make on your business, how much you have to pay your employees, what kind of health coverage you have to provide? I think small businesses would suffer, and I think big businesses would suffer,” Morgan said.
“The system as it is today is not broken,” said Turner. “Unions win more than 60 percent of all elections. The ways that unions would benefit would be doing more for their members, helping to assist their members. That’s why unions have declined. We have so many laws now to protect employees, and they protect all employees. And most employees believe that if they do a good job, they can negotiate a better situation with their employer. They want to have a direct relationship with their employer; they don’t need a third party.”
“If EFCA doesn’t pass, we’d be in the same boat we’re in now,” said Hickman. “It’s technically and legally possible to unionize, but effectively there is very little unionization in the private sector because once you get people together, there’s a two-year trial before the vote, management picks people off and fires with impunity those people who are union activists and organizers.
“In the course of two years, the union effort wanes and goes away. And the pressure on employers to be decent is much less because they know it is so much harder to be organized. Whereas if the Employee Free Choice Act passes, employees have to be more decent.”
The legislation is still being reviewed in both houses of Congress. A date for a vote is not known.

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