Ford & Harrison's Arnold E. Perl: "Employee Free Choice Act Puts Workplace Democracy at Risk"

Business Wire, Sept 2, 2008

WASHINGTON -- On Labor Day, Automotive News ran the following essay from Ford & Harrison's Arnold E. Perl.

When Sen. Robert Wagner introduced his 1935 bill that was to become the nation's basic labor law, the National Labor Relations Act, he declared: "Democracy cannot work unless it is honored in the factory as well as the polling booth; men cannot be truly free in body and in spirit unless their freedom extends into the places where they earn their daily bread."

Since then, the National Labor Relations Board, which administers the National Labor Relations Act, has conducted some 423,000 elections involving more than 40 million employees.

In running elections, the NLRB makes voting simple and convenient by setting up polling places wherever employees work. In short, secret-ballot elections are at the core of our nation's basic labor law.

Moving ahead to today, organized labor and its congressional supporters are seeking to supplant our nation's basic labor law with the so-called Employee Free Choice Act. The House passed its version, H.R. 800, on March 1 by a vote of 241 to 185.

Obama a co-sponsor

It is noteworthy that Sen. Barack Obama is a co-sponsor of the Senate version, S. 1041.

Under the bill, employees actually would lose their free choice to vote for or against union representation. Instead, a workplace would be unionized if the union obtained signatures on authorization cards from a simple majority of the proposed bargaining unit.

A boon for unions

Employee choice is sealed off from any input except from the union. That violates the spirit and intent of the free-speech rights accorded to employers under the National Labor Relations Act.

Most observers agree that the Employee Free Choice Act would simplify and hasten labor's ability to gain union representation at companies and thereby overturn years of declining membership.

In the 1950s, unions represented about one of three workers; today in the private sector, it's 7.5 percent, fewer than 1 out of 13.

In 1979, UAW membership peaked at 1.5 million. The UAW says it had 469,910 members at the end of 2007, down more than 1 million from 1979 and at the lowest point since 1941.

And union dues are falling along with membership. The July-August 2007 cover of a Detroit business journal asked, "Can the UAW survive?"

The U.S. Supreme Court in NLRB vs. Gissel Packing Co. Inc. (1969) maintained that "secret elections are generally the most satisfactory -- indeed the preferred -- method of ascertaining whether a union has majority support." The NLRB agrees. The court underscored that cards are "admittedly inferior" to the "acknowledged superiority of the election process."

No secret ballot

Not only does the Employee Free Choice Act do away with secret-ballot elections to resolve questions of representation; it mandates binding arbitration where parties have not agreed in collective bargaining to determine the initial terms for two years of a first contract.

The mandatory-arbitration provision cannot be understated. The idea that an arbitrator would be able to set wages for two years should give pause to every employer. Simply stated, an outsider determines fundamental issues such as wages, benefits and working conditions. That raises questions about the constitutionality of the legislation.

Wagner, father of the NLRA in 1935, would be stunned by the Employee Free Choice Act. For more than 70 years, we have accepted the premise that "democracy cannot work unless it is honored in the factory as well as the polling booth." Not only do the union and its congressional allies want to overturn our labor laws; they want to rewrite history.

It is incongruous to accept the unions' stance when at the same time our country preaches democracy and secret-ballot elections around the world.

When we go to the polls Nov. 4, we will take for granted our right to vote in a secret-ballot election. We also will take for granted our fundamental right to hear from both sides before we vote.

Those democratic rights will no longer exist in the workplace if the Employee Free Choice Act becomes law. Moreover, it defies the teaching of Thomas Jefferson that "information is the currency of democracy."

This essay originally appeared in Automotive News, a Crain Communications publication, on Labor Day, September 1, 2008. For more information on the Employee Free Choice Act, contact Mr. Perl at aperl@fordharrison.com or (901) 291-1500.

About Ford & Harrison: Ford & Harrison is a national labor and employment law firm with 200 lawyers in 18 offices: Atlanta, GA; Asheville, NC; Birmingham, AL; Chicago, IL; Dallas, TX; Denver, CO; Jacksonville, FL; Los Angeles, CA; Melbourne, FL; Miami, FL; Memphis, TN; Minneapolis, MN; New York, NY; Orlando, FL; Phoenix, AZ; Spartanburg, SC; Tampa, FL; and Washington, DC. Lawyers in the firm represent employers in labor, employment, immigration and employee benefits matters, including litigation, in issues involving national and international jurisdictions. More information can be found at www.fordharrison.com.