Editor's Choice

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Editor's Note: Richard Haygood is a lawyer on Kilpatrick Stockton's Labor and Employment team in Raleigh. He represents management in labor relations matters, defending employment discrimination lawsuits and advising employers on complex employment issues.

Employees should keep secret-ballot rights

With the election of President-elect Barack Obama, and significant gains for Democrats in the U.S. House and Senate, labor unions have high hopes for the passage of the top item on their legislative agenda: the so-called Employee Free Choice Act.

The EFCA would amend the National Labor Relations Act to eliminate the requirement of a secret-ballot election, require binding arbitration of first contracts after 120 days, and stiffen penalties for certain unfair labor practices committed by employers. Its supporters claim the bill is necessary to ease the economic squeeze on the middle class and fix a broken labor system.

Far from being a blessing to the middle-class, this bill would more likely cause job losses and plant closures. Rather than trying to "fix" our existing labor laws, Congress would do well to first understand the principles on which they are based.

Whether to be represented by a labor union is one of the most significant decisions of an employee's working life. With unionization comes a number of significant changes. In our current system, employees make their selection following a reasonable campaign period in which both the union and the employer have had the opportunity to present facts, opinions and information regarding the issue of union representation. This provides employees with a chance to hear all sides of the story -- the pros and the cons of union representation.

Current law protects employees' right to express their choice for or against union representation through a secret ballot election conducted by the National Labor Relations Board, or NLRB.

The EFCA would eliminate the guarantee of a secret-ballot election and require the NLRB to certify a union as the exclusive bargaining representative of all employees in a bargaining unit as soon as it receives authorization cards signed by a majority of the employees (generally referred to as a "card check"). In this way, the EFCA ignores the widely understood reality that an employee may sign a card -- at the request of a union organizer or co-worker -- for numerous reasons other than the employee's genuine desire for union representation. The employee may sign a card because he simply wants to get the union organizers out of his home at dinner-time, or because he had a difficult day at work, or because he wanted to have a peaceful few minutes on break and signing the card would cause a co-worker to leave him alone.

The elimination of the secret-ballot election has received considerable media attention, and even some well-known supporters of labor, such as George McGovern, have opposed the card-check aspects of the EFCA. Perhaps as a society we have recognized that eliminating the secret ballot is simply undemocratic.

The other major provision of the bill -- providing for mandatory arbitration in first contract negotiations -- has received less attention and is even more troubling. This provision would compel businesses to accept wages, hours and terms and conditions of employment set by government-appointed arbitrators.

Currently, when a union is certified as the exclusive bargaining representative for a group of employees, the employer has an obligation to bargain in good faith with that union representative regarding the employees' wages, hours and other terms and conditions of employment. The National Labor Relations Act expressly cautions that the obligation to bargain in good faith "does not compel either party to agree to a proposal or require the making of a concession...." During the bargaining process, employees and their union may apply economic pressure (e.g., by engaging in a strike) in an effort to persuade the employer to accede to their demands.