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Dissecting Pros, Cons of Card-Check Legislation

March 6, 2009
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Related Topics: Labor Relations, Workforce Planning, Featured Article
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The election of President Barack Obama has turned the spotlight on a proposed law to reshape how unions are formed.

    Obama backs the Employee Free Choice Act, which would make it easier for workers to form a union. EFCA also imposes stiffer cash penalties on employers that interfere with organizing efforts or illegally stall initial contract negotiations. Crain’s Chicago Business asked two Washington, D.C., labor law experts with opposing views on EFCA to discuss how life might change if it becomes law.

    Josh Goldstein is a spokesman for American Rights at Work, a nonprofit, union-funded lobbying group that supports EFCA.

    Crain’s Chicago Business: Is there anything wrong with the current process?
    Josh Goldstein: The law today too heavily favors the employer. Management can force workers who have already indicated their desire to form a union to take an extra step and hold an election, which gives them time to harass, intimidate and even fire individuals seeking union representation. And the penalties for interfering with the union formation or contract negotiations are so insignificant they are laughable.

    Crain’s: Does this bill take away the right of workers to hold an election to determine whether to form a union?
    Goldstein: No, not at all. That’s one of the myths opponents of this law would love for you to believe, but it’s not true. Workers will still have the right to request an election by signing a card indicating a desire to hold an election. The difference is that neither the National Labor Relations Board nor the employer can force an election on them. If workers sign a petition indicating their desire to have an election, then the NLRB can call an election; but if a majority want union representation and indicate that on a card, they will not be forced to go through that additional step of holding an election. EFCA gives workers the right to call an election, not management.

    Crain’s: Even if EFCA doesn’t pass, do you think the Obama administration is likely to foster a more union-friendly environment?
    Goldstein: We’re under new leadership in Congress and the White House, and both are committed to workers’ rights. People voted for leadership who can help to elevate a struggling middle class.

    J. Justin Wilson is managing director of the Center for Union Facts, a lobbying group funded primarily by corporations. The group opposes EFCA.

    Crain’s: Why is this bill garnering so much attention right now?
    J. Justin Wilson: Labor unions are looking to swell their ranks and their war chest. They spent $450 million in this election, and there was really only one string attached: the Employee Free Choice Act. The stars are aligned for them right now with a Democratic House and Senate and Democratic president, and they know they are in reach of it.

    Crain’s: Is there anything wrong with the current process?
    Wilson: The process used today… ensures American workers have the right to vote their conscience in a secret ballot, and that ensures the process is democratic. Unions know that it’s much easier to get people to sign a card than to get them to vote in an election, so it’s clear that this bill was introduced because they have no intention of using the NLRB process ever again. The bottom line is, every worker should have the right to vote.

    Crain’s: Does this bill take away the right of workers to hold an election to determine whether to form a union?
    Wilson: Is there a loophole that would allow an election? Yes. Would that loophole ever be used? It’s very, very unlikely. The bill explicitly says that if they turn in 51 percent of cards [saying yes to unionizing], the NLRB is explicitly prohibited from having an election.

    Crain’s: Even if EFCA doesn’t pass, do you think the Obama administration is likely to foster a more union-friendly environment?
    Wilson: What we see happening … is more and more tweaks around the edges that favor labor unions. … It’s a litany of things small-business owners will have to hire lawyers to help them comply with and that expose them to a greater degree of liability.

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