Humpty Dumpty is in Pieces: The Truth About EFCA & Secret Ballot Elections

Dmitri Iglitzin — Sun, 25 Jan 2009 00:46:43 -0500

The U.S. Chamber of Commerce has promised to spend $10 million opposing the Employee Free Choice Act (EFCA), the proposed federal law that would allow workers to form unions based on a showing of majority support, sometimes referred to as a “card check” election.

Other big bucks are being spent by faux-grassroots organizations with misleading names such as the “Coalition for a Democratic Workplace” and the “Center for Union Facts.” President Barack Obama was not exaggerating when he said, recently, that the business community considers EFCA “the devil incarnate.”

The focal point of opposition to EFCA is the provisions that make it easier for workers to form unions without going through a secret ballot election. Opponents contend that without secret ballot elections, workers will be coerced by union organizers into signing cards or petitions.

As one opponent, Rep. John Kline (R-Minn.), put it, "It is beyond me how one can possibly claim that a system whereby everyone – your employer, your union organizer, and your co-workers – knows exactly how you vote on the issue of unionization gives an employee ‘free choice.’”

But fatally undermining this argument is a dirty little secret known as “Wurtland Nursing.”

Wurtland Nursing provides rehabilitative, hospice, and long-term care to residents in Wurtland, KY. A local affiliate of the Service Employees International Union (SEIU), one of the nation’s largest and fastest-growing unions, has represented the maintenance and service employees at this facility since 1997.

In 2003 a Wurtland Nursing employee presented the company a petition signed by over 50 percent of the workers asking for a vote to remove the union. Wurtland Nursing immediately repudiated its relationship with SEIU and declared itself a non-union company.

The union filed a complaint with the National Labor Relations Board (NLRB), the nation’s chief arbiter of labor disputes, contending that Wurtland Nursing had no right to reject the union without a secret ballot election having occurred. Four years later, the NLRB decided in favor of the company, saying that it didn’t matter that there had not been an actual vote. The petition was all the proof the company needed to conclude that the workers no longer wanted to be represented by the union.

The U.S. Chamber of Commerce did not denounce this decision. Neither the Coalition for a Democratic Workplace nor the Center for Union Facts raised a stink. Despite the fact that Wurtland Nursing had stripped its employees of their union on the basis of signatures on a petition, rather than after a secret ballot election, no prominent critic of EFCA has ever criticized the outcome of that case.

Yet the principle supposedly being violated by EFCA, the need for a secret ballot, is violated as much by the Wurtland Nursing rule, which allows employers to repudiate unions based on petition signatures, as it would be by EFCA, which would allow workers to obtain union representation in the same manner.

The truth is that neither business nor labor genuinely doubts that signatures on a petition or on cards are a legitimate and appropriate basis for determining what the majority of workers want. It is high time for employers to acknowledge that truth, along with the fact there is nothing wrong with permitting workers to ask openly to be represented by a union, and for their employers to thereby become obligated to honor that request.

A December 2006 Peter D. Hart Research Associates survey found that 60 million Americans would like to join a union, but are discouraged from doing so by employer intimidation. An April, 2007 Institute for America's Future study estimates that passage of the EFCA would increase union membership by 10 percent, providing an additional 3,537,625 people with health insurance and 2,773,045 more people with pensions.

In this time of economic crisis those numbers are a compelling argument for EFCA. In contrast, the argument that EFCA will undermine secret ballot elections falls apart in light of the Wurtland Nursing rule. And no amount of employer rhetoric can put that argument back together again.

Left Behind: Employees of Small Employers and the Right to Unionize

Dmitri Iglitzin — Sun, 18 Jan 2009 11:21:47 -0500

Non-unionized musicians at a small Seattle-area symphony orchestra, the Bellevue Philharmonic Orchestra (BPO), have grown deeply dissatisfied with the way management treats them. Eighty percent signed a petition asserting their desire to join the Musicians' Association of Seattle, an affiliate of the American Federation of Musicians. As is typical of employers throughout the country, even when confronted with evidence of the overwhelming desire of their employees for union representation, the BPO has refused to agree to this request.

Under the proposed Employee Free Choice Act (EFCA), employers covered by federal law would be forced to recognize their employees’ preference to be represented by union based upon this type of written showing. The business community is adamantly opposed to this measure, considering it, as President-elect Barack Obama stated on January 15 of this year, “the devil incarnate.”

Ironically, because the BPO musicians work for an orchestra too small to be covered by federal labor law, they will be left without any protections even if EFCA passes. This is because workers who work for companies that are too small to meet a certain monetary threshold typically have no rights at all when it comes to seeking the right to select or create a union to represent them in negotiations with their employer.

In 1999, example, the 50 or so musicians who made up the orchestra portion of Seattle's Civic Light Opera (CLO), a musical theater company, also decided that they wanted to join the Musicians' Association. More than 80 percent of those musicians also signed authorization cards stating that desire.

They never got their union, however. Nor did they get to vote in an election on the issue. Because the primary federal labor law, the National Labor Relations Act (NLRA) excludes theater orchestras that have an annual revenue of less than $500,000, as well as symphony orchestras with an annual revenue of less than one million dollars, these employees had no legal right to either form or join a union.

So when the musicians of the CLO did what workers have always done when they have no other recourse—strike—they did so without any of the protections they would have had were they deemed employees protected by the NLRA. Their employer responded to this job action by firing all of the striking musicians, which was completely legal under both state and federal law. Not only did the musicians end up with no union—they ended up with no jobs.

This story is repeated daily in this state and country. It is not merely relatively small orchestras which avoid the obligations of the NLRA, but all small employers. According to a 2002 report from the United States General Accounting Office (GAO), about 5.5 million employees nationwide are excluded from the protections of the NLRA as a result of the “small employer” exception.

It's too soon to tell whether the BPO musicians, despite their lack of legal protections, will succeed in their efforts to be represented by the Musicians' Association. A bill has been introduced into the Washington State Legislature that would grant employees of symphony orchestras, operas, and performing arts theaters the rights they currently lack. Among other things, this bill would (like EFCA) require employers to grant union recognition to their employees based on “majority sign-up.” Again like EFCA, this bill’s future is uncertain.

Among the most important features of EFCA are its provisions that impose financial penalties on employers for firing pro-union employees, penalties that currently do not exist. Unless the proposed Washington law passes, however, the BPO musicians would not benefit from these protections. Even if the musicians were fired en masse for their efforts to form a union, as happened to their colleagues at the CLO, there would be no federal remedy for them.

Should that occur, it would undoubtedly be a disaster for the musicians, the orchestra, and the community. Beyond that, it would be yet another illustration of the abysmal state of labor law in this country, one which needs to be rectified through legislative changes at not only the federal level, through EFCA, but often at the state level, as well.

Workers Rights

Humpty Dumpty is in Pieces: The Truth About EFCA & Secret Ballot Elections

Left Behind: Employees of Small Employers and the Right to Unionize