June 20, 2007
TO THE MEMBERS OF THE UNITED STATES SENATE:
The U.S. Chamber of Commerce, the world's largest business federation representing more than three million businesses and organizations of every size, sector, and region, urges you to oppose cloture on the motion to proceed to consideration of either H.R. 800 or S. 1041, the "Employee Free Choice Act (EFCA)," which is expected to be voted on this week.
The National Labor Relations Act (NLRA), enacted more than 70 years ago, established a system of industrial democracy that is similar in many respects to the nation's system of political democracy. This system allows employees to determine whether they wish to be represented by a particular union through a federally supervised secret ballot election overseen by the National Labor Relations Board (NLRB). It protects the interests of unions and employers, but most importantly, employees, by ensuring that both sides have an opportunity to make their case, and those employees are able to express their decision in private—free from coercion and intimidation.
Secret ballot elections have long been recognized as the preferred method for determining representation questions. However, under certain conditions, a union and an employer are allowed to agree to union recognition through the so-called "card check" process. EFCA would amend the NLRA by giving unions the right to achieve recognition solely through the "card check" process, thus permitting labor unions to avoid secret ballot elections. Under the card check approach, union organizers collect signatures of employees on authorization cards and present them as representing the true intent of the workers. However, as the Seventh Circuit Court of Appeals observed, "Workers sometimes sign union authorization cards not because they intend to vote for the union in the election, but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back."1 Therefore, the card check process exposes employees to abuse, threats, and intimidation all in the name of the union accumulating the required number of signatures. EFCA would elevate this inferior card check process to the principle method of recognizing a union, thereby eliminating the employees' long-standing right to secret ballot elections.
Due to the inherent and long recognized problems with the card checks process, it should come as no surprise that Americans overwhelmingly prefer the time honored secret ballot process over card check schemes. In a recent poll by McLaughlin and Associates, almost 9 in 10 voters agree that workers should continue to have the right to a federally supervised secret ballot election when deciding whether or not to organize a union. Even union members themselves recognize that secret ballot elections are the fairest way to choose whether to form a union. In a poll by Zogby International, union members overwhelmingly (84% to 11%) indicated that employees should have the right to specifically vote on whether to join a union.
Despite this, unions are now emphasizing the card check process in their organizing drives, not because they do not win secret ballot elections—they win over 50%—but because it eliminates any chances of losing. As an open-ended process, they can keep their campaign going as long as necessary rather than resolve the issue on a specific date as with an election. Not only are employees often targeted for intimidation, but the card check process also often leads to other coercive tactics, known as "corporate campaigns." These campaigns are designed to pressure employers through demonstrations, false and misleading stories in news media, and other public expressions to recognize unions as the exclusive bargaining representative of their employees without having to go through an election. These tactics are how organized labor's leadership intends to restore its declining membership base in the private sector.
Reliance on stale 1930's rhetoric that falsely castigates employers will only perpetuate organized labor's current membership difficulties. The answer to organized labor's failure to get more members lies in developing an agenda and message that is relevant and attractive to the modern workforce not in subverting time-honored and proven election procedures that protect an employee's right to vote in secret free from coercion by either side.
In addition to its card check provisions, EFCA also contains a provision to impose mandatory interest arbitration of first contracts. Interest arbitration would set all the terms of the initial contract between an employer and a union, including wages and benefits, but also other provisions typically in collective bargaining agreements, such as outsourcing and union security clauses. While sometimes used in the public sector, binding interest arbitration is completely unprecedented in the private sector. The idea of government arbitrators determining contract terms and what business decisions must be taken to meet those commitments is simply beyond the pale.
Finally, EFCA includes provisions to increase penalties on employers for certain violations of the NLRA. The fact that these provisions apply only to employer violations and not to union violations illustrates the bias inherent in EFCA. Union coercion is no less contemptible than employer coercion. For these reasons, the Chamber strongly urges you to oppose cloture on the motion to proceed to EFCA. The Chamber will include votes on, or in relation to, this issue in our annual How They Voted scorecard.
R. Bruce Josten
1 NLRB v. Village IX Inc., 723 F.2d 1360, 1371 (7th Cir. 1983). These views of the court on card checks as not indicative of true employee intent are reflected in other case law and are far from unique.