Employee Free Choice Act and Card Checks Research Paper

Introduction

This research paper is going to discuss the Employee Free Choice Act, views of local and international labor laws on freedom of association and organization of unions, and advantages and disadvantages of card checks as compared to secret ballot elections.

The congress of the United States has a responsibility of enacting the ‘Employee Free Choice Act which would greatly solve the problems experienced in the US labor laws that have limited the ability of employees to form unions. International Human Rights Policies guarantee workers in any organization form unions that enable them to negotiate collectively. The United States is a member of the International Labor Organization and is therefore mandated to abide by this basic law. Unfortunately, most employers in the United States ignore this law because they deny their workers the freedom to form unions.

The United States Labor Laws have loopholes in the sense that they allow employers to manipulate the organization of workers. Delays in implementation are rampant leading to interruptions in delivering corrective actions for workers. According to Employee Free Choice Act (2007), employers often use sanctions for any misconduct which is against the International Law which requires employees to be given a warning to stop the further breaking of the law. Flawed union election procedures enable employers to manipulate selection proceedings thereby suppressing union organizers from campaigning freely in the workplace. When employers realize that workers are strongly aligned to a union, they might organize premature elections as a strategy to counter the union advocates thereby, violating the labor laws. They do it considering that penalties for their manipulation are minimal and that if there is any form of justice, it would be delayed.

Even though some unions are successfully organized, they are unable to bargain effectively because US labor laws do not have tough penalties on employers who manipulate workers’ union rules. Bypassing ‘Employee Free Choice Act,’ most of the problems faced by unions would be addressed by creating a neutral playing ground for workers to organize elections and bargain effectively for their demands. The weak US labor laws would be reinforced with more consequences for employers who violate labor laws. The process of selecting union officials would be democratic because employers are required to identify the formation of unions on the grounds of a card check.

Historical perspective of labor organization

Historically, US labor laws that govern the election of union officials always favored workers to select officials of their choice through a competitive process and after acquiring relevant information regarding the unions. Employers had no option but to recognize a union that had been supported by the majority using the card checks without relying on recognition from NLRB selection. Under the laws, employers were not allowed to communicate anti-union messages, hold forceful meetings to speak against the union, or distribute information against the union. After more than a decade of domination of these rules, US Congress passed another act called ‘Taft Hartley Act’ in 1947 which introduced amendments that enabled employers to petition recognition of unions and enabled them have the freedom of speech which has made them participate actively in anti-unio campaigns. The NLRB and courts further made decisions that argued that all the sides had the right to hear and respond to each other’s views.

Rules that safeguarded the rights of employees in the 1930s were slowly abandoned by the 1950s and union election rules that did not meet international standards were used popularly. US labor laws failed to address intervention by employers to deny union officials to hold meetings within business premises with workers so that they would not respond to anti-union literature as required by ILO. ILO commission of freedom of association dictates that workers have the right to information from the union at their workstations. Taft Hartley Act of 1947 was used as a weapon to suppress workers from joining and creating trade unions. The ILO does not recommend any procedure for appointing union officials but clearly stipulates that freedom should not be restricted and that delays should not be deliberately used to hold organizations (Freeman, 1980).

Card checks

According to Garner (1999), the card check is a system that was introduced with a sole purpose of simplifying organization of unions. The present laws demand that people organizing unions gather at least three quarters of the signatures of employees for a collective bargaining group which would then enable ‘Federal Board of Labor Relations’ to conduct elections to decide whether to make the union legal. These procedures were carefully designed to put into consideration the interests of employers, workers and the union so that voting can be done in secrecy without forcefulness.

The capabilities of unions have dropped over the years and have made it necessary for organized labor to change rules and laws that make it easy to organize them. Introduction of the card check bill is seen as a solution to this dilemma. The alternative for conducting a secret ballot election supervised by federal authorities is replaced by authorization cards which require that majority of it be signed by workers before a union is certified. By using card checks, campaigns periods would be done away with together with laws that govern it. Workers would not be coerced to make decisions in private but in the face of union organizers giving them pressure to speed up organizing procedures (Rafel, G. and Chandley T., 2008).

The other function of the bill is to put additional information to the existing laws of collective bargaining so that in case a union is acknowledged for the first time, federal arbitrators will set up guidelines on union agreements unless worker’s union and the employers agree on deadlines that cannot be achieved. The current laws call for the two parties, the union and the employer to conduct discussions in good faith while recognizing that both parties are in a position to agree on what is acceptable or deny a proposition in order to benefit another party. The card check bill compulsory arbitration procedures would do away with any enticements to the employer or union officials while they bargain. As part of streamlining labor laws, card check bill would be imposing punishment on employees who violate labor laws.

International perspectives

‘Universal Declaration of Human Rights’ accords every individual the right to be in a union in order to bargain for his or her interests. ICCPR (International Covenant on Civil and Political Rights) states that, “everyone shall have the right to freedom of association with others, including the right to join trade unions for protection of his interests” which United States is in agreement with.

ILO (International Labor Organization) also recognizes the freedom to join unions as a basic right for human beings and that all its member states must abide by it. Among the recommendations of ILO is allowing people to associate freely and bargain collectively which is a basic fundamental principal even if countries like the US have not ratified the agreement. The committee responsible for freedom of association in the ILO state that when states become members of International Labor Organization, they have the responsibility of abiding by the laws of the Philadelphia Declaration which are ‘The Principles of Freedom of Association.’ The committee stipulates that when members agree to be members of the organization, they should respect and abide by the rules of ILO due to the fact that they are members (Cingranelli, 2006).

United States Laws of Freedom of Association

International law gives guidelines on how workers should be accorded freedom of association, but violations are rampant in the United States. This is due to the fact that these laws are weak and have loopholes. People who violate these laws are treated leniently and in most cases justice for the victims take long to be achieved. Employee Free Choice Act which is yet to be passed by Congress would address some of the delays in attainment of justice for victims. Currently, when employers brake labor laws, their punishment is so minor that they consider it a cost of doing business, which they refer to as the cost of defeating union efforts. US laws do not offer disciplinary measures for employers who limit freedom of association but may impose economic sanctions or remind them to maintain a status quo (Randall, 1996). Workers who have been suspended or sacked are to be reinstated to their positions and their wages paid but excluding the period of negotiations. According to employers, this cost is so small that they use it as a strategy to suppress officials of the union. If the employer had issued threats to shut down the work place, the laws state that the remedy is for the employer to stop the threats; in the case some officials of the union had been transferred to weaken the union; the solution is for the employers to return them back to their original work stations.

To make it worse, these lenient punishments are reinforced with delays in justice dispensation. According to ‘National Labor Relations Board’ the agency responsible for putting into force labor laws make delays to as long as nine months to file irregular labor practices and may wait for up to three years for a decision to be delivered. Status quo is difficult to be maintained when decisions are delayed to this extent. For instance, workers who have been fired may find work elsewhere during the period they are waiting court proceedings. Therefore, they would have left the guilty employer who violated their rights. Employers take advantage of these delays and in most cases consult anti union professionals for advice. During court proceedings, testimonies of employers appeal to the judges rather than adhering to administrative orders to allow workers back to their jobs (Lopez, 2004).

Employee Free Choice Act Intervention

The ‘Employee Free Choice Act’ which articulates the card checks would offer reinforcement to penalties given to people violating agreements of the union. It proposes that employers to pay double the amount of damages the workers incur when they are either dismissed or suspended for engaging in union activities. In addition, the act has recommendations that impose civil fines for employers who willfully orchestrate illegal activities. The Act also eradicates inconsistencies between workers’ and employers’ violations of labor laws by enabling NLRB go to court if an employer willingly denies employees the freedom to organize union activities.

Biased Union elections

The current secret ballot election that are supported by US labor laws are biased because they support employers intentions to manipulate election rules thereby, denying employees the freedom to form unions of their choice. The labor laws of the United States allows employers to crusade against organization of unions to the extent of using techniques such as threats of closure of the business, termination of employment and reduction of salaries as long as the ‘forecasts’ do not contain real threats, compulsion or pledges. Officials of the union are not given an opportunity similar to that of employers to relay their opinions with regard to union creation and forecasting of anti union activities.

Employers can officially call on workers during working hours to attend meeting against the union where views and queries from union loyalists are barred thereby prohibiting union officials from organizing other meetings in the near times. From these meetings during working hours, employers can propagate messages against union organizers to the extent of locking them out of the work place. According to BNA Business Report (2006), employers can go further and stop union officials from relaying information to employees within the company surrounding including all the open spaces within the company. United States laws permit employers to turn down unions as long as majority of the workers give indications of organizing a card check and require that the union proves that it has the support of the majority of the workers by conducting an NLRB election. The time for the election takes several weeks which creates an opportunity for employees who are against the union to take all the necessary steps to engage in illegal anti union activities with minimum consequences (Ehrenberg, 2000). Majority of the employers utilize this opportunity to gain themselves.

Shortcomings of card checks

However, the NLRA does not only allow for card checks to be used as a means of showing majority support but it also allows employees to engage in secret ballot voting as supported by congress amendment of 1947. Their argument for supporting secret ballot rather than card checks is that the use of card checks displays a biased support of the union because workers can easily be forced or tricked into voting for the unions. For nearly eighty years the card check had been blocked from use. This is due to the fact that some people would sign the cards to either show solidarity or avoid being opponents to their friends of colleagues. Workers given these cards may sign them so that union employees may stop bothering them or do it to avoid disappointing the persons before them. On the contrary, secret ballot elections give voters the freedom to comfortably choose after they have been educated about the union and employers intentions.

Another disadvantage of card checks is the irregularity that may arise as a result of unions abandoning the selection process that protects the rights of workers. In order for the unions to counter a sharp drop in membership from the organization, unions use the corporate campaign strategy where they undermine the reputation of the employer in the public which impacts negatively on the business operations of the employer (Aeppel, 2005). Union organizers demand for neutral contentment’s with the employer issuing notices that the employer would not talk to the employees while the union officials ask for signing of the authorization cards. The disadvantage of card checks is that it has no regulations due to the fact that signatures are collected anywhere including at the workplace, home, hotels and any other place as long as the supervising board does not witness. At times, unions seek acknowledgments from employers even before the card check is complete so that they can begin bargaining immediately the card check is complete. In this case, workers are bound to follow the conditions of the agreement even though they never exercised the free will to choose whether to be represented by the union or not.

Despite the strong backing for card checks by Employee Free Choice Act, the card checks have several shortcomings as argued by some critics. When card checks are fully implemented, communication between employees and the workers would be very limited and would pave way for federal arbitrators to determine the terms of employment. The other shortcoming with card checks is that it abolishes the freedom of voting by employees. By denying them secret balloting, their votes are exposed in the open paving way for criticism from the employer or union officials. The manner in which signing of the card check is done makes it possible for employees to be harassed or forced as they intend to form a union because their positions are known (Sherk, 2007).

The Supreme Court of the United States has in many occasions supported the secret ballot elections arguing that it supports “voluntary unionism.” Employees get an opportunity to decide whether to be represented by a union or not. During secret ballot elections, an independent board monitors the elections giving them a chance to practice their rights freely. The NRLB has a lot of experience organizing and conducting elections and it therefore, has a balanced approach of all interested parties when organizing secret ballot elections (Arvid, 1987).

Employee Free Choice Act approach and benefits of card checks

The ‘Employee Free Choice Act’ does not intend to make it illegal for employers to organize anti union campaigns or allow union officials to hold parallel campaigns to counter employers but it focuses on moderating the current election rules regarding the freedom of workers to make choices. It proposes that workers would either choose the card check or NLRB election to elect officials of the union after which employers must respect them. After certification by NLRB that majority of workers have signed authorization cards in favor of the union, the union would be in a legal position to bargain with the employer without going for an NLRB voting. This eliminates the possibility of pre election period during which employers use the weak labor laws that hinder formation of unions (Broderdorf, 2008).

Supporters of card checks argue that the current secret ballots do not work to support the rights of American employees. They argue that elections are organized by management and financed by funds from workers. Because the period of elections takes a period of up to thirty days, some employees take this opportunity to discourage employees from the union by issuing threats. Card check would eliminate this period and demand recognition from the employer if majority of the workers append their signatures on the union cards (Kaufman, 1994).

Collective bargaining

Even if employees successfully organize unions, there is still another impediment to freedom of association due to weak legal structures governing collective bargaining. US labor laws state that it is the policy of the US to promote collective agreements. It gives employees freedom to choose people of their own choice in the negotiation table and states that employers should negotiate with them. The union officials and the employer are to meet at reasonable times and hold discussions in “good faith” with an intention of reaching a common agreement. The weakness of this provision is the failure to prove bad faith bargaining and delivering light punishment for violations of rules. Going by the present laws, if an employer engages in a negotiation with no intention of arriving at an agreement, the punishment is that the employer should bargain more. He is only required to post a note that he would not engage further in bad faith negotiations and forced back to negotiations where the same cycle can be repeated (Reynolds, 1998).

The ‘Employee Free Choice Act’ does not intend to elaborate good faith bargaining but has a goal of stopping the employer from looking down upon the rights of employees. It proposes that if the two parties do not reach an agreement after ninety days of the start of negotiations, a mediator is brought in. In the event that disagreements go on further after mediation for a period of thirty days, the conflict is forwarded for arbitration where the two parties would sign a binding contract (Younkins, 2009).

Conclusion

The “Employee Free Choice Act” has not been able to be passed in Congress because forty Senators majority from the Republican side were opposed to it. They argue out that the contents of the bill are against ideologies of democracy and economic growth hence, it is not popular among the Americans. That is the reason why some Democratic Senators voted against the bill. In my view, the act has more benefits compared to the current system of recognizing unions. It has moderations on the use of card checks and NBRL elections. In addition, it contains harsh penalties for employees who violate the rights of employees to associate.

References

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