Surprise - you're unionized!

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Proposed card-check law denies workers' rights

While it's been said that the Employee Free Choice Act will "restore workers' freedom," nothing could be further from the truth. Instead, EFCA eliminates employees' rights to cast a private ballot regarding union representation, which undercuts the principles at the heart of a democratic society. For this reason alone, there is no doubt that, if enacted, EFCA will constitute one of the most significant changes to the National Labor Relations Act in more than 60 years.

Made up of three main provisions, EFCA's first will essentially eliminate secret ballot elections for union representation. This means that an employer may be unionized before it's even aware of union organizing activity or it may have too little time to communicate with employees effectively on the union issue.

Experience shows that it's easier for a union to get an employee to sign an authorization card than it is to get that employee to vote for the union in a secret ballot election. Often the employee simply signs the card before hearing the other side of the argument from the company. Also, it's not hard to pressure an employee until he or she signs the card. Contrasted with the current right of workers to step into the voting booth to make a decision in secret, EFCA will expose workers to undue intimidation and harassment.

A less well-known but equally harmful feature of the EFCA is interest arbitration. Once the union is certified, the parties have a total of 120 days to negotiate a contract. If they cannot agree on a contract, an arbitrator will write the provisions to which the parties could not agree.

Today, it's not uncommon for a first contract to take up to a year to negotiate. Thinking that the process can be completed in a matter of weeks is naive. Moreover, if the union thinks it can do better with the arbitrator, it will stall the negotiations.

Interest arbitration represents a major change in the law. Currently, nothing goes into a collective bargaining agreement unless the employer agrees. This gives the company a significant measure of control over its own economic future. But under EFCA, anything the union wants might end up in the contract. Ultimately, such decisions would be made by the arbitrator, who may know little or nothing about the business.

Finally, EFCA significantly increases penalties for unfair labor practices. Under EFCA, a fine of up to $20,000 per violation may be imposed for willful or repeated violation of employees' rights in a union campaign or in bargaining for an initial contract.

It's astonishing to me that there are still many individuals and businesses across the country that are still not aware of this law. The battle against EFCA is only beginning, and concerned employers should keep a vigilant watch on what may become one of the most catastrophically conceived labor laws of all time.

Unions are spending hundreds of millions of dollars to get Democrats elected to federal offices in 2008. These candidates have all pledged to support the passage of EFCA. Workers and business owners wake up; you have a big target on your back.

- Kenneth A. Knox is a partner in the Fort Lauderdale office of Fisher & Phillips.


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