Fortune's Easton misrepresented debate over Employee Free Choice Act

In a December 19 article on the Employee Free Choice Act (EFCA) -- legislation that would allow union representation where a majority of employees in a workplace sign a petition -- Fortune magazine Washington editor Nina Easton asserted: "The union-backed Employee Free Choice Act eliminates secret ballots, and declares the union the winner if a majority of employees openly sign a petition." But the EFCA does not eliminate employees' rights to a secret ballot; as the New York Times reported, "Business groups have attacked the legislation because it would take away employers' right to insist on holding a secret-ballot election to determine whether workers favored unionization" [emphasis added]. Moreover, supporters of the EFCA say employers often use the election process* to delay, obstruct and intimidate workers in an effort to resist organizing efforts. Rather than explain these concerns of EFCA supporters in any meaningful way, Easton wrote of EFCA supporters only, "Union leader [sic] say the current secret-ballot system unfairly favors management and is a factor behind their plummeting membership ranks."

The House Committee on Education and Labor describes the claim that "The Employee Free Choice Act abolishes the National Labor Relations Board's 'secret ballot' election process" as a "myth" and states on its website: "The Employee Free Choice Act would make that choice -- whether to use the NLRB election process or majority sign-up -- a majority choice of the employees, not the employer."

Moreover, while Easton wrote that "[u]nion leader[s] say the current secret-ballot system unfairly favors management and is a factor behind their plummeting membership ranks," and that opponents of the EFCA say it "will leave employees subject to pressure from peers and labor organizers," she did not note that a key reason supporters say the EFCA is necessary is that employers frequently exercise "pressure" on workers -- in the form of illegally firing union supporters and threatening to close businesses.

As The New York Times reported, "Union officials say they do not dislike the secret ballot, but rather the lengthy, expensive, adversarial campaign before the vote in which companies often fire union supporters and use videos, large meetings and one-on-one sessions to pressure employees to vote against unionizing." Indeed, a January 2007 report by the Center for Economic and Policy Research explained how the current election process allows employers to exert pressure on workers:

The National Labor Relations Act (NLRA) makes it illegal for employers to fire workers involved in union-organizing campaigns. The penalties associated with "discriminatory discharges" under the NLRA, however, are small: back pay for illegally fired workers minus [emphasis in the original] any earnings that workers had after they were fired. Given these small penalties for illegal firings, the NLRA, in practice, has given employers a powerful anti-union strategy: fire one or more prominent pro-union employees --typically workers involved in organizing the union -- with the hope of disrupting the internal workings of the union's campaign, while intimidating the rest of the potential bargaining unit in advance of the National Labor Relations Board (NLRB)-supervised representation election.

An August 2000 report by Human Rights Watch similarly found that "[m]any employers have come to view remedies like back pay for workers fired because of union activity as a routine cost of doing business, well worth it to get rid of organizing leaders and derail workers' organizing efforts. As a result, a culture of near-impunity has taken shape in much of U.S. labor law and practice."

Additionally, Cornell University researcher Kate Bronfenbrenner found in a 2000 study of union organizing campaigns that "more than half of all employers made threats to close all or part of the plant during the organizing drive." Bronfenbrenner continued:

More than three quarters of the campaigns where threats occurred also involved aggressive legal and illegal employer behavior such as discharges for union activity, electronic surveillance, illegal unilateral changes in wages or benefits, bribes, threats to refer undocumented workers to INS, promises of improvement, and promotion of union activists out of the unit.

Bronfenbrenner also found that "one in every four employers in our sample discharged workers for union activity."