One of the more time-tested ways of getting Congress to pass legislation of dubious value is to lie with numbers. Interest groups with a stake in passage know the drill. They invent numbers, or failing that, take them out of context. Either way, the intent is to convey the impression of an exploding problem rectifiable only by emergency national action. Whether the crisis at hand is “three million homeless,” “skyrocketing divorce rates,” or “plummeting SAT scores,” the point is to scare lawmakers into rapid action, bypassing consideration of serious objections. Organized labor’s aggressive campaign on behalf of the misnamed Employee Free Choice Act, or EFCA, follows this pattern. And like many other efforts at panic-peddling, union-sponsored or otherwise, this one seems to be succeeding.
Led by George Miller, D-Calif. (in photo), the U.S. House of Representatives on March 1 passed the Employee Free Choice Act (H.R. 800) by 241-185. Near the end of the month, Ted Kennedy, D-Mass., backed by 46 co-sponsors, introduced an identical version (S. 1041) in the Senate, where Majority Leader Harry Reid reportedly plans to file a cloture motion (i.e., to cut off debate) any day now. The legislation, for years pushed by the unions, provides for an automatic override of the secret-ballot process enshrined in the National Labor Relations Act (NLRA) of 1935. Under the standard election system, a union wins exclusive representation of employees through a process monitored and certified by the National Labor Relations Board (NLRB). Unions don’t like this system because aside from being time-consuming, it provides nonmember workers with certain safeguards against organizers’ pressure to join. By contrast, the union card check allows organizers far more opportunity to approach workers on the job, over the phone, at home or elsewhere, and pressure them into signing a card affirming a desire to join.
The procedure is legal, and has been used for many years. Yet unions have been known to use underhanded, and even threatening, tactics to obtain signatures. An employer may recognize a union as a collective bargaining agent if the union generates signed cards from a majority of affected workers, but it does not have to. The proposed EFCA legislation would change all this. It would require employer recognition of the union as a bargaining agent as soon as signatures go beyond the 50 percent mark. It also would provide for arbitration of first bargaining contracts if the parties fail to reach an agreement after 90 days of bargaining and 30 days of mediation by the Federal Meditation and Conciliation Service, an independent U.S. government agency.
Organized labor sees the measure as a way of shoring up their sagging ranks. Unions now claim only 12 percent of the total U.S. work force, and a mere 7.4 percent of all private-sector employees. Total (nonfarm) membership, by contrast, was about a third of the labor force a half-century ago and about 20 percent during the early 80s. What’s behind the long-term decline? Labor officials claim the main reason is employer intimidation. Most workers want to join a union, they insist, but are blocked by employers who pull out every trick in the book to discourage them. Sheldon Friedman, research coordinator for the AFL-CIO’s [email protected] campaign, asserts that the standard election system “allows and indeed encourages lengthy, confrontational campaigns aimed at snuffing out union support” through threats, intimidation, surveillance, coercion and firings of union supporters. This is highly misleading. The tactics that he describes always have been illegal under the NLRA. Yet if Congress could force employers to grant workers basic collective-bargaining rights through a card check, such tactics would end, once and for all, and about 60 million currently unrepresented workers would join.
In their campaign to get EFCA passed, union officials are citing an ostensibly damning statistic: Every 17 minutes somewhere in this country a worker is fired or otherwise illegally punished for expressing support for a union. It’s a tag line both powerful and misleading, which is exactly why organized labor uses it with such regularity now. The assertion has its origins in a report issued by a union front group, American Rights at Work, stating that every 23 minutes an employee is fired or discriminated against for organizing or otherwise expressing union support. The figure, in the group’s words, is “derived from the 1993-2003 NLRB Annual Reports, which indicate an average of 22,633 workers per year were ordered to receive backpay (sic) from their employers.” Labor activists subsequently updated that number, asserting that 31,358 workers, or one every 17 minutes, were unduly punished in 2005.
They’ve been giving Congress an earful with that number lately. On February 8, Nancy Schiffer, associate general counsel for the AFL-CIO, testified in favor of the Employee Free Choice Act before the House Education and Labor Committee, Subcommittee on Health, Employment, Labor and Pensions. She put it this way:
“According to NLRB statistics, in 1969 the number of workers who suffered illegal retaliation for exercising their federal labor law rights was just over 6,000. By the 1990s, more than 20,000 workers each year were victims of discrimination. In 2005, according to the NLRB’s Annual Report, 31,358 workers received back pay because of illegal employer discrimination in violation of the National Labor Relations Act – one worker every 17 minutes. Imagine if, instead of firing workers to guarantee a union-free workplace, this many workers were fired to maintain a women-free workplace or a minority-free workplace.”
Some mainstream media accounts echoed this view. A recent New York Times story included the following passage: “Mr. Samuel [AFL-CIO Legislative Director Bill Samuel] pointed to a National Labor Relations Board report that 31,358 workers received back pay in 2005 after their employers were accused of illegally retaliating against them for supporting a union.”
This claim, however, rests on the false assumption that receiving back pay is necessarily the result of employer retaliation. Now it is true that NLRB’s 2005 Annual Report (p. 116, Table 4) indicates that 31,358 employees received back pay. But that number, viewed in isolation, means next to nothing. Unions know this as well as anyone. An employee, in fact, can collect back pay for reasons entirely unrelated to employer suppression of collective organizing.
A great many, arguably most cases occur when a worker, typically already a union member, sues an employer for failing to negotiate in good faith. Such instances are covered under Section 8(a)(5) of the National Labor Relations Act. Here, the employee has reason to believe that his employer either refused to bargain outright or arbitrarily changed conditions of the employment contract, such as reneging on a pay raise or refusing to pay union representatives for time spent in negotiations. Additionally, it can refer to monetary compensation for missed work time due to disciplinary action against the employee. The 2005 NLRB report reveals 8,911 such back pay cases. But that’s not the end of it. For a single 8(a)(5) case may involve more than one employee. Indeed, it may trigger hundreds, if not thousands, of claims. The Center for Union Facts, a Washington, D.C.-based nonprofit research group, recently released its own study, “Union Math, Union Myths,” concluding that just 2.7 percent of all union organizing campaigns during Fiscal Years 2003-05 involved one or more employees being fired for union activity.
Union officials argue that employer suppression of union organizing needs to be eliminated, regardless of its true dimensions. A preemptive card-check law provides the means to do it. But the National Labor Relations Act’s election process already provides key safeguards for employees wishing to organize. For example, an employer may not inform employees that a union victory would force the company to close a plant, outsource jobs, or take other remedial action, even if such adverse consequences are likely. Nor may the employer promise higher wages, increased benefits or improved working conditions, should workers decide to remain nonunion. Moreover, the employer neither may ask employees if they plan to join the union nor spy on workers, whether on or off the clock. By contrast, it is the union, not the employer, who decides when to petition the NLRB to initiate the election process. And a union may freely recruit workers during non-work hours, unless the employer explicitly bans soliciting on its premises.
Such safeguards (among others) go a long way in explaining why unions succeed more often than not in winning collective-bargaining agent status in National Labor Relations Board-supervised elections. NLRB data indicate unions won 56.4 percent of all elections during April 2000-March 2007, with the figure averaging about 60 percent in the latter two years of this seven-year period. But compared to the card check, organized labor sees this as a low success rate. A 2001 article in Industrial and Labor Relations Review by union partisans Adrienne Eaton (Rutgers University) and Jill Kriesky (Wheeling Jesuit University) showed card checks produce victories for first-time union representation more than 80 percent of the time. Such success, unfortunately, is often the result of high-pressure recruiting by organizers. In 2004, former NLRB member Charles Cohen had this to say in testimony before Congress: “In my experience, neutrality/card check agreements are almost always the product of external leverage by unions, rather than an internal groundswell from unrepresented employees.”
By replacing the secret ballot, then, mandatory employer card-check recognition would serve to undermine the workplace democracy that NLRA has promoted for more than 70 years. That ought to be reason enough for the Senate to oppose the Employee Free Choice Act, legislation whose end result would be decidedly less freedom of choice for workers not wishing to join a union. (Daily Labor Report, 4/26/07; New York Times, 2/23/07; Center for Union Facts, website; Public Service Research Council, 5/15/07; The Heritage Foundation, 4/11/07; other sources).