Employee Free Choice Act looms
A "drastic realignment of power" in favor of labor over management will result if current labor legislation known as the Employee Free Choice Act is passed, warned one local employment attorney. "Usually when you have new legislation, it's to fix something that's broke," said Allen Anderson, of Smith Johnson in Traverse City, "but there's nothing busted here. This is not the time to be pushing this legislation."
The scope of those who will be impacted is massive, said another labor attorney, Rachel Roe: "The Employee Free Choice Act will affect literally every private business in northern Michigan that is currently not unionized."
Anderson, who has represented management in as many as 40 union elections, was speaking of the Employee Free Choice Act (EFCA) introduced in Congress March 10th. And, depending upon whom you ask, that date marked either a great moment for working families or a sharp strike against job creation. Opinions vary widely but the issue is pitting labor against management; the EFCA is either a way for millions of hourly-wage workers to hang onto the American dream or a knee-jerk backlash against corporate abuses of the so-called golden parachute.
Union membership and collective bargaining is currently regulated by the National Labor Relations Act (NLRA), ratified in 1935. If passed, the EFCA would increase the power of employee-signed signature cards to form a union, increase penalties on offending employers, and guarantee contracts, through binding arbitration if necessary, for new unions. And, the EFCA has special implications for Michigan because our state is not among the 21 states with a right-to-work statute; meaning that it is legal here for union membership to be a condition of employment.
"I think it's a mistake to see this pitting employees against employers," said Paul Kersey, director of Labor Policy for the Midland-based think tank, The Mackinac Center for Public Policy, which is critical of the Act. "It's really legislation that is focused on the prerogatives of union officials. Unionization isn't for all work places or all workers. You can't just assume that all employees want a union. Still, I think it's going to be a very close issue either way."
It may indeed be a mistake for labor and management to line up on their perpetual sides of the union membership issue, but that is exactly what is happening. Unions support the bill and management opposes it. One voice of reason locally is Wayne Lobdell, of Lobdell Management. In his long career in hospitality management, Lobdell has viewed the union issue from all vantage points.
"I have worked on the line in a union factory and on the line in a non-union factory," he said. "I have managed a union hotel and a non-union hotel. I have found unions to be helpful and unions to be harmful. I have also seen some businesses with unfair employment practices . . . and I respect the contributions organized labor has made in America. Yet, when a good and efficient employer-employee relationship exists, forced unionization is counter-productive to business and job creation."
Lobdell said he believes that employees should have the right to decide whether they want union representation, but that the EFCA is not the way to accomplish that.
When passed in 1935, the NLRA established the card system used today which sounds simple enough: workers interested in being represented by a union would sign cards authorizing a union to represent them, the NLRA Board would verify the validity of the cards, a vote was taken and majority ruled, with a tie going to management. Prior to a vote both the union and management have the opportunity to state their case to workers and even if they signed a card in favor of the union, workers would be given time to change their minds. Today, unions say the EFCA is needed to shore up the NLRA because some employers have tainted the card system by intimidating and coercing workers and union membership has fallen dramatically as a result. Those in opposition say that union membership has declined because union jobs have generally diminished and because union leaders use their resources for political gain and not for the benefit of their worker members.
The "drastic realignment of power" Anderson spoke of is this: If passed, the EFCA would consider a signed card a permanent vote for unionization without the opportunity of a vote or for the worker to change their minds, and the union would take effect immediately. Employers would have no opportunity to state their case and would be required to offer workers on contract. If a contract was not reached in 90 days, binding arbitration, sometimes by arbitrators with little or no knowledge of the specific industry, would begin. Penalties for businesses ignoring or breaking the new legislation would be severe – up to $20,000 per violation.
"What happens now is if in fact employees sign a card to vote to go into a union, it can take months or a year before that vote happens," said Victor Walter, business representative for Carpenters & Millwrights Union local 202, which has 400-plus members from Manistee to the Upper Peninsula. "There's a lot of coercion that can go on."
Jeff Bush of the Electrical Workers local 498 with 250 members from Clare County to Mackinaw City agreed. "All our members have been receptive. This will give us a right to get a fair wage and fair benefits without the CEOs getting massive bonuses."
Passage in some form is a foregone conclusion, says Anderson, who speaks regularly to business groups and has yet to hear anyone in his audiences express the opinion that the EFCA won't become law. When that happens, he said, the EFCA will face legal challenges. "It's simply unconstitutional. You can't force a contract. You can't have employers' first amendment rights evaporate. You can't ignore due process. This will be challenged immediately." BN