A Way to Fix the Employee Free Choice Act

Joe Mathews
Connecting California Columnist and Editor, Zócalo Public Square, Fellow at the Center for Social Cohesion at Arizona State University and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (UC Press, 2010)

Since last week’s post on the dishonest business campaign against the Employee Free Choice Act, my email box has been full with friendly if critical missives from business and labor sources and friends.

EFCA, for those who aren’t following the controversy, is major federal legislation supported by labor interest and Congressional Democrats (and a few Congressional Republicans). It would replace the current so-called secret ballot system (so called because these ballots are rarely, as a practical matter, secret) for elections in which workers choose whether to join a union. Instead, workers could unionize simply by signing cards. This is known as “card check.”

I don’t like the current system or the EFCA system. I’d rather we take the existing structure and tighten time limits, add penalties for employers who break the rules, and create a secret ballot system with real secret ballots and prompt, fair elections. I thought this was a middle position. But in the emails, each side – business and labor – accused me of being on the other’s side.

Well, if you didn’t like that compromise, let me suggest another. Instead of trying to fix the current union election system, how about a compromise that adopts the new EFCA structure – with one significant change.

That change involves the process known as decertification. Never heard of it? A decertification election is the opposite of a union election. Instead of deciding whether to vote the union in, workers decide whether to vote the union out. As a practical matter, decertification elections often occur when one union is seeking to replace another in a workplace. For those following the bitter dispute between the United Health Workers union and the Service Employees International Union over representation of home health care workers in California, a decertification vote is what UHW is seeking in order to get its workers out of the SEIU and back into UHW.

Decertification is a weakness of EFCA. While the legislation would no longer require elections when workers decide whether to join the union, EFCA would still require a so-called “secret ballots” election for decertification. There’s more than a little hypocrisy in that. And such a scheme isn’t “employee choice.” It’s protection of unions, particularly unions that aren’t serving workers.

If all that’s required is signing a card to bring the union in, then signing a card ought to be good enough to kick the union out – or to switch unions. In fact, that might be the best of both worlds who believe in strong, responsive unions. Unions would find it easier and cheaper to grow and gain the power they need to represent workers. But they’d also live in fear of decertification, and thus would be under more pressure to produce for members.

For union folks who don’t like this compromise, I’d refer them to my first suggestion: beefing up the current system.

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