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Source link: http://archive.mises.org/8954/employee-free-choice-act/

Employee “Free Choice” Act

November 14, 2008 by

I just received an ominous (but informative)

update

from my company’s excellent outside employment lawyer (Trey Wood, of Alaniz and Schraeder), regarding the mis-named “Employee Free Choice Act“. The EFCA, as one commentor notes here, “should rightly be called the Employee No Choice Act. It will abolish NLRB elections and allow unions to certify via card check. The deal being that Unions have recently been losing a large majority of certification elections as of late. By going to card check, they eliminate the protection of anonymity provided by the secret ballot and they know which employees have not signed cards. They are thus free to pressure and intimidate them into signing. Unfortunately, if this passes, more Unions will bully themselves into existence.”

As the update notes, “With the election of Barack Obama to the White House, it is certain that the Employee Free Choice Act will become law.” The update–which takes a refreshingly pro-business stance and does not shy from accurately describing the ominous aspects of this terrible bill–summarizes the Act and provides practical suggestions employers can take to try to defend themselves from this “revolutionary legislation.” Brace yourselves–it’s gonna be a rocky ride!

{ 17 comments }

Enjoy Every Sandwich November 14, 2008 at 12:00 pm

“By going to card check, they eliminate the protection of anonymity provided by the secret ballot and they know which employees have not signed cards. They are thus free to pressure and intimidate them into signing.”

This won’t work on me (I tend to react very negatively to coercion) but there is another related issue: if the union does win (as is highly likely; no doubt there will be little or nothing to stop them from forging my name on a card or engaging in other skulduggery to ensure they get “enough” cards), any employee who doesn’t sign will be on the union’s permanent sh*t-list. Worker’s rights, indeed.

Inquisitor November 14, 2008 at 12:08 pm

Union rights, maybe? The right of union leaders to profit from coercion?

Stephan Kinsella November 14, 2008 at 3:57 pm

On a tangential note–for most libertarians, the evil of (state-law-supported) unions, “workers’ rights,” and laws that penalize employers and business is taken for granted. But given the hostility to or at least skepticism of “corporations” and employers exhibited by some of the more leftist libertarians and mutualists–and their devotion to “workers” (discussed here), one wonders whether they would have the same take on this law, or whether they would view it more neutrally–would they regard the pro-business, pro-enterprise presumptions implicit in criticism of this bill as “vulgar libertarianism” [1, 2]?

J Cortez November 14, 2008 at 3:59 pm

I’m sure I’m not alone here when I say this: Whenever a bill or law has a name or title that is supposed to be “descriptive” of it’s aims, I automatically assume the reality of the bill/law is the complete opposite.

Stanley Pinchak November 14, 2008 at 7:33 pm

J Cortez,
you have a very good rule of thumb there. As Austrian Economics shows, state intervention in a particular area of the economy can only cause negative effects (at least unseen effects) to that area and those areas most connected to it through human action (with general negative effects rippling outwards). With this in mind, any bill that congress passes which permits and enacts some concrete action by the state in a particular area can only have negative repercussions in that area. Thus all bills falling in this general category will have the opposite effect of any positive sounding title affixed. Call it the Bastiat Postulate.

newson November 15, 2008 at 12:56 am

if you wanted to get a rise from the mutualists, you should have berleyed up with copious walmart references. never fails.

Slawson November 15, 2008 at 5:25 pm

Perhaps there should be a return to company union busting goons. That would make unions want to go back to the secret ballot.

David Smith November 15, 2008 at 10:37 pm

Employers have been firing employees who try to organize almost at will for long time, with no fear of any repercussions. As long as we have a Department of Labor whose main client is business and only business, workers will need to level the playing field by what ever means necessary, including card check legislation.

Ian Wales November 16, 2008 at 10:57 pm

I strongly agree with David Smith’s comment. The current “corporatist” nation is at odds with libertarian principles, and this state of disequilibrium can only be rectified by enabling the average citizen’s voice — which has been crying out for an end to “corporatism” — to be heard. For better or worse, the only vehicle through which that has worked in the past is unions.

In other words, the pendulum has swung too far to one extreme, and now an offsetting force must come into play in order to pull the pendulum back to the middle.

Neither extreme — “corporatist states” nor overly powerful unions — are consistent with libertarian principles. Thus, I submit that our role over time is to act against when either extreme manifests, and at this point, the extreme is clearly in favor of the “corporatist state.”

Stephan Kinsella November 17, 2008 at 9:18 am

Above I wondered whether the left libertarian and mutualist hostility to “corporations” and modern business and their devotion to “workers” might make them view this law more sympathetically. The comments of David Smith and Ian Wales above bear out my concern. Smith says, “As long as we have a Department of Labor whose main client is business and only business, workers will need to level the playing field by what ever means necessary, including card check legislation.”

Wales writes: “The current “corporatist” nation is at odds with libertarian principles, and this state of disequilibrium can only be rectified by enabling the average citizen’s voice — which has been crying out for an end to “corporatism” — to be heard. For better or worse, the only vehicle through which that has worked in the past is unions. … the pendulum has swung too far to one extreme, and now an offsetting force must come into play in order to pull the pendulum back to the middle.”

In other words, left anarchism/mutualism can lead you to adopt statist views. Careful playing with fire, guys.

Mr. Glib Sacrastic November 17, 2008 at 9:33 am

“left anarchism/mutualism can lead you to adopt statist views.”

Indeed. Look up their positions on “stolen capital” sometime.

E.g. Wal-Mart built stores on land stolen from Native Americans…and Sam Walton originally borrowed a few thousand bucks to start the firm, but all capital is stolen from workers by the corporatist system…hence Wal-Mart really belongs to the workers, or you have the right to look it etc. etc etc.

In other words, all current “property” is really stolen, hence “workers” can loot whatever they want. This is somehow a libertarian position…

Glen November 17, 2008 at 11:57 am

Unions are, today, just a big staffing business. Actually, the no choice act is pro-business, if as some of those above indicate that the DoL is in the pocket of business, since this removes anonymity and lets business more easily identify those that are not “team” players. In any case, this act is pro-established business and anti-labor.

Ian Wales November 17, 2008 at 11:57 am

Stephan incorrectly construes my comments as being that of a mutualist, which I definitely am not. I suppose I am somewhat comfortable with the “left libertarian” label, though, inasmuch as I’ll wear that hat when a “corporatist state” exists. When the pendulum swings back to the middle, then the hat comes off. I believe this is a simple matter of supporting a state of equilibrium that is most supportive of libertarian principles.

Although Stephan’s comments are far more rational than Glib’s, he failed to explain how my approach is “playing with fire” and how it could lead to statism. I would welcome his explanation.

Glib, on the other hand, went off the reservation. He sounds like Sean Hannity, who is clearly a mouthpiece for the “corporatist state,” as evidenced by his attacks on, and attempts to suppress, Ron Paul during the presidential campaign. As Hannity likes to do, Glib completely distorted my comments and then somehow managed to proceed to a ludicrous rant totally unrelated to the topic. Glib is, of course, free to add more comments as he pleases, but he managed to destroy his credibility with his last post, so I don’t anticipate engaging in further discussion with him.

Phil November 19, 2008 at 2:46 pm

To get a look at how union organizers already use intimidation tactics to get cards signed (even when eventually they know they’ll go to a secret ballot) take a look at http://www.efcaexposed.com

The statistics used to critique the current system are completely misconstrued (or fabricated). Unions have won nearly 70% of all union elections held in the US this year under the “unfair, employer dominated” system the EFCA is supposed fix. Employers terminate employees illegally in only 2% of election cases – and in those cases the violating companies are penalized (as an attorney I do agree that justice is not nearly as swift as it should be but that is just as often a result of union tactics as it is employer tactics – the NLRB should be given the resources to do its job properly and quickly).

The EFCA is a solution in search of a problem. The most astonishing thing – especially for a message Board on Austrian economics – is that the card-check provision isn’t even the worst part of this proposed legislation. The bill mandates that federally appointed arbitrators implement a contract over the objections of an employer if the union and company cannot agree to a first contract within 4 months. Most first contracts take a year or more to bargain – many times no contract is ever entered because the parties cannot agree to terms. The idea that government appointed bureaucrats will impose contracts on unwilling parties isn’t just anti-market, it is essentially socialist (a government mandated wealth transfer from capital to labor). Very few people are talking at all about this horrible aspect to the proposal and I encourage everyone to learn as much as they can about this terrible policy before it is too late to do anything about it.

David L Veksler November 20, 2008 at 1:30 pm

TEST

Joshua Park November 20, 2008 at 2:36 pm

I wonder if the text of my comments have anything to do with it. Just in case, here is the text:

As I see Mr. Kinsella has yet to respond to Mr. Wales, I thought I’d offer my observations (albeit late in the game).

“Swinging the pendulum” is statist in itself. It takes the idea that the government should step in when “things aren’t right”, and proposes to enact legislation to set things “back on course”. If someone were to constantly try to swing the government pendulum to the middle (whatever that is), then that person would actively seek government intervention one way or the other.

Instead of using government to try and get things to the arbitrary middle, a libertarian would seek to get government out of the pendulum business entirely. Government does have a place in these matters, though, in my opinion. What is it? (Drumroll…)

Enforcing Contracts!

(Contracts have to be a mutual agreement between parties, not through government. If a piece of paper comes from the government that says that certain people are forced to do certain things whether they like it or not, then we call that paper an “edict”, not a “contract”.) If an employer doesn’t want union workers, then isn’t she free on the market to make that decision for her company? The large mass of skilled, highly-trained, highly motivated workers that form that union are then free to work for a competitor, start their own business, or find other employment, or go home an knit a sweater.

Now, on the other hand, if the employer entered into a contract with a union of people, and then violates that contract, the government’s rightful place is to step in and make things just. But that’s it. The free market decides the best structure for a given situation, whether the outcome is a union, at-will employment, salaries, hourly wages, commissions, etc. Only under a free market would we be able to find “the middle”.

Jay March 3, 2009 at 12:07 am

How do opponents of the EFCA reconcile the fact that the majority of threats and intimidation against employees come from employers and not unions? These cases have been indisputably verified by the NLRB. To say that over 25 percent of employees face threats and intimidation from their employers during a campaign would not be an overstatement given the overwhelming number of documented cases which have come before the NLRB? I am always open to fair and honest discussion on any matter, but these negative assertions against EFCA are highly disingenuous when exposed to the illuminating light of facts and reality, as they exist for employees of many companies. Obviously, to say that this is always the case would not be a truthful statement, but there is no doubt that employer threats and intimidation are the norm and not the exception in a disproportionate amount of situations.

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