The Corner

EFCA Compromise Nonsense

Today’s Washington Post editorial on the Employee Free Choice Act endorsing a “compromise” on the bill substitutes assumptions for facts, with all of the assumptions tracking the latest talking points of the pro-EFCA forces.


The editorial contends that the current state of labor law favors employers who don’t want their employees to unionize and that there are unfair barriers in the way of union organizing.The chief unfairness, according to the piece, is that employers have “unfettered access to employees” to make their cases, whereas union access is restricted. Consequently, the WaPo endorses “quickie elections” and “equal access” to remedy the purported unfairness. 


The paper doesn’t cite any facts to support its contentions. Probably because the data go the other way.


First, the idea that the EFCA amendments presently being floated constitute a “compromise” is a peculiar usage of the term. As the editorial itself notes, EFCA opponents remain monolithically opposed to any form of the bill. The “compromise” is merely a recognition among Democrats that they can’t muster the needed support for EFCA from within even their own ranks.


Second, the allegedly “unfair barriers” to unionization that the WaPo laments were in place 50 years ago when unions represented 35% of the private-sector workforce. They were in place 30 years ago when 24% of the workforce was unionized. And they’re essentially the same today when only 7.5% of the workforce is unionized. Did the WaPo run an editorial decrying the unfairness of the system when unions were in ascendance?


Despite these “unfair barriers”, last year unions somehow managed to win 67% of all representation elections. While this figure certainly isn’t a conclusive metric on whether barriers to unionization — unfair or otherwise — exist, it does suggest that the barriers are hardly insurmountable.


Moreover, the most recent NLRB data show that only 1.1% of elections won by unions are subjected to procedural challenges by employers. And in unfair labor practice charges brought before the NLRB, it found unlawful discharges to have occurred in just 3% of union campaigns.


Finally, the editorial claims that employers have unfettered access to employees during unionization campaigns, whereas unions’ options are limited. Hardly. In fact, I’d wager that a fair percentage of employers would gladly swap the access/campaign rules applicable to them for those that govern unions. (Consider: Unions can visit employees at their homes; employers cannot. Unions can make all kinds of promises to employees to get them to vote for the union; employers cannot).


Sure, employers have greater access to employees during working hours, but it’s not as if unions are completely shut out. Under certain circumstances, unions may have access to employer property and employee union organizers have the right to solicit co-workers during non-work time in non-work areas such as cafeterias, break rooms, rest areas, etc. Thus, employers potentially have access to employees for about 40 hours a week. But unions potentially have access for the remaining 128, plus some of the 40.


The “quickie election”/equal access “compromise” is not a response to an unfairly tilted playing field. It’s an attempt to salvage some aspects of a seriously flawed bill that may resuscitate the fortunes of labor unions but does little, if anything, to protect employees’ rights or the ability of American employers to compete.


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