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A Poor 'Choice'

The Employee Free Choice Act cavalierly dismisses the democratic principles of fair play, open debate and the secret ballot.

January 26, 2009
Let me be honest and upfront about this: I like Barack Obama. After eight years of George W. Bush and "conservative" policies that Ronald Reagan wouldn’t recognize, Obama is like a cool breeze on a hot summer day. Everything he says seems to be encouraging and hopeful, and that’s what America really needs right now.

    But I’m also pragmatic and realistic about the liberal agenda that our new president has embraced during his brief time in public service. Although Obama’s early actions seem to be following the Bill Clinton centrist leadership playbook, the business community is bracing for something else: a mandate-driven, legislative-heavy, pro-labor agenda.

    Our cover story in this issue ("More Labor for HR") lays out the burdens this kind of agenda is likely to place on management and human resources professionals, but there is one plank of the Obama platform that troubles me above all others—the deceptively named Employee Free Choice Act.

    This legislation isn’t about the free choice of employees at all. What it is about is making it much easier for unions to organize a workplace by introducing "a card-check procedure that allows a union to gain recognition without an election by secret ballot," according to University of Chicago law professor Richard Epstein, writing in The Wall Street Journal.

    There are other problematic provisions to the act, but the big issue for me is the frighteningly wrongheaded notion that the secret ballot, a pillar of our democracy, is somehow good for electing presidents but flawed when it comes to union organizing. It’s a bad idea that is going to make for even more divisive labor-management relations, in my view.

    Under the current system, the union can lobby workers to sign a union card, but "an employer can insist upon a secret ballot after 30 percent of workers indicate by card checks their interest in a union," Epstein notes in his Wall Street Journal piece. He adds that "the campaign that follows lets the employer air his views about the downsides of unionization before the vote takes place."

    Unions don’t like the notion of a "campaign" in the workplace in which both sides get to make their case to workers about the merits of a union or nonunion environment. That’s why the Employee Free Choice Act is such a miserably misleading and flawed piece of legislation: It cavalierly dismisses the democratic principles of fair play, open debate and the secret ballot for a system that instead would be heavily stacked in favor of a union gaining admission to a workplace simply by gathering signatures.

    Organized labor had assumed that the Employee Free Choice Act would be one of the first pieces of legislation pushed through Congress by the Obama administration. After all, the new president sponsored the act in the U.S. Senate, and unions have assumed that Obama would want to reward them for their help in getting him elected.

    But there may be something else going on. According to a story by Workforce Management’s Mark Schoeff Jr., congressional Democrats have decided to push the Lilly Ledbetter Fair Pay Act, "which would make it easier for employees to sue for pay discrimination, and the Paycheck Fairness Act, which would lift compensatory and punitive damage caps on pay suits," instead of starting with the Employee Free Choice Act.

    Part of that may be because the act is fiercely opposed by the business lobby and promises to start a "legislative Armageddon," as Schoeff puts it, but perhaps it’s also because our new president has had some second thoughts about the act as he follows Bill Clinton’s more centrist approach.

    Pushing the contentious Employee Free Choice Act right out of the gate would seriously dent the encouraging and hopeful tone that Obama has been working to foster. Would tackling the act right now and setting off a legislative war be the best way to begin his new administration?

    Here’s my hope: that the decision to delay, for now, any serious push on the Employee Free Choice Act gives everyone the opportunity to re-evaluate whether such a flawed and undemocratic piece of workforce legislation should even be part of America’s business agenda. Perhaps our new president will continue his encouraging and hopeful tone. Maybe he’ll decide that despite organized labor’s support for him, for now a legislative Armageddon over the Employee Free Choice Act will have to wait.

Workforce Management, January 19, 2009, p. 42 -- Subscribe Now!