Restrict Employer Choices, Have Fewer Employers

BusinessWeek has a debate today on the Employee Free Choice Act, which is up for consideration before Congress. I’m against based on the very little information I know. Essentially, the pro and con between Rep. George Miller (D-CA) and Home Depot co-founder Bernard Marcus provides the bulk of my knowledge. If Rep. Miller’s rhetoric sufficiently corresponds to what the Act would do, I’m against it because Rep. Miller demonstrates that he only recognizes rights that are convenient for his partisanship.

(Note: I’m not advocating the opposite of his view. Rather, I believe the relationship between employers and employees must be voluntary and mutual. I am not qualified to set all rules for all exchanges. No one is.)

To Rep. Miller’s essay:

Unfortunately, in recent years, the middle-class life has become increasingly difficult to maintain. Workers’ wages have stagnated as the cost of everything from milk to college tuition has skyrocketed. The staples of a middle-class life—a fair wage, access to health care, a sound retirement—are getting squeezed. The percentage of national income going to workers’ wages is at its lowest level since 1929, while the percentage of our nation’s wealth going to corporate profits is at its highest since the 1940s.

I’m a skeptic; I want data where Rep. Miller provides anecdote. He’s a politician, so I never expect to see it. But, for fun, I’ll assume he’s telling the truth. If “national” income is now being directed to corporate profits rather than to workers, then workers should become investors. They will claim “their” share of the “national” income.


The Employee Free Choice Act would fix this broken system so workers can freely exercise their right to organize. It would do three things. First, it would allow workers to use a majority sign-up process to form their union, without their employer vetoing that choice. Second, it would increase penalties on employers who violate workers’ rights. Third, it would ensure that, once workers form a union, collective bargaining leads to a first contract—not delay and more union busting.

Focusing on point two: what penalties do we have on employees who violate employers’ rights? (I refuse to concede Rep. Miller’s ridiculous use of employer/worker rather than the objective employer/employee.) To demonstrate what I mean by this, Rep. Miller later writes this:

If these advantages aren’t enough, an employer can fire a pro-union worker to make its point, or threaten to close the business down if workers vote the wrong way, without facing more than a slap on the wrist. At the end of this process, the NLRB holds an election on the employer’s premises.

Employees have rights, but employers do not. At least, they do not have the right to shut down their business if one of the inputs (labor) is not to their liking. That’s absurd. Rights belong to the individual, not groups. But if they applied to groups, all groups would have rights, not just the groups who agree with us. Starting a business is not an agreement to perpetuate the business beyond the owner’s desire to continue it. The Employee Free Choice Act seems to suggest that the ultimate decision in running a business – whether or not to continue – becomes the sole discretion of employees. This is a blatant violation of one individual’s rights to satisfy another’s (claimed) rights.

This is not any democracy that most Americans would recognize as such. Yet this is the system that opponents of the Employee Free Choice Act want to preserve. Another process exists. If an employer allows it, as some major companies already do, workers can avoid the conflict-ridden NLRB process and form a union by signing cards, the same way you might form a civic association. When a majority has signed up, the employer recognizes the union.

Unfortunately, current law allows employers to veto the use of this freer majority sign-up process—and they do. The Employee Free Choice Act would simply take this veto power away from the employer and restore the democratic principle of free choice to the workplace.

The right for an employer to determine that she will employ individuals on the condition that they deal with them individually rather than collectively – the employer’s freedom of (voluntary) association – is subject to the whim of the majority. Remember that potential and current employees for any organization can always refuse to continue providing their services. If the employer is unable to find enough people willing to agree to her terms, she will either offer better terms or go out of business. This is the freedom of association perpetuated by natural incentives for cooperation that need no encouragement from government. Rep. Miller’s advocacy for the Employee Free Choice Act shows his misunderstanding of the American concept of individual rights.

4 thoughts on “Restrict Employer Choices, Have Fewer Employers”

  1. There are few things I find as aggravating as the concept that somehow mandating “card-check” balloting – in which the union has weeks to get you to apply your signature to a card just one and in which everyone knows who has and has not signed their card – is a better way of exemplifying free “choice” than a secret ballot. Regardless, I’m not exactly sure how a mandate = “choice.” I could go on, but my rant about card-check procedures could go on for thousands of words.

  2. Employee Free Choice Act – To”At Will” Or Not to “At Will” That is the Question!
    Every state in America with the exception of Montana is “At Will”. For me the employment coin has had three sides, I have functioned as an employee, manager and business owner. I currently function as an employee and have a passion for educating job seekers and workers about basic employee rights! The Employee Free Choice Act by design creates a true partnership between employer and employee. In my view, “At Will” doctrine has spawned and reinforces an employment environment that is;

    (1) adversarial by creating an “us versus them” employment mindset
    (2) emboldens employers to maintain, sustain and perpetuate discriminatory employment practices
    3) monumentally wasteful of monetary resources and public goodwill in needless litigation

    According to the language of the Free Choice Act, it will:

    • (1) give employees greater liberty to form unions and establish employment contracts
    • (2) punish anti union employer retaliation and harassment
    • (3) compel employers to deal timely and honestly in negotiating contracts

    Money is the number one reason for an employee contract! These contracts may allow for termination of employment by the employer and employee. A Contract of employment is an agreement between an employee and employer that is mutually binding. These contracts specifically outline the duties and functions of the job. Many employment experts point out that a detailed contract of employment can be very good for both sides. A good contract makes the conditions of the job predictable.

    Would you buy a business without knowing the exact details? Would you buy land without having ever seen it? When you apply for a loan, you have to read and sign a contract. Most people do not think about taking employment without first getting an employment agreement contract. A job is very important when it comes to keeping a roof over our heads, keeping the lights on, sending the kids to college, etc. Unfortunately, most people are not aware of the need to have a written contract with the businesses that hire them.
    The perception is that employers do not want a contract to limit there ability to fire an employee.

    Why? I believe that elements of corporate America want to maintain an antiquated and out dated system of employment to preserve the ability to discriminate against certain groups and races. Here is the evidence to support that assertion. In fiscal year 2007, 37.0% of all (EEOC) Equal Employment Opportunity Commission complaints filed were race discrimination based. 30.1% were sex discrimination based and national origin is 11.4%. The American workplace is comprised of the good, bad and the ugly as any other society in the world.

    In an At Will environment employers routinely utilize different ways to stop workers from trying to form unions for the purpose of negotiating an equitable piece of the overall economic “pie”. According to the American Rights at Work organization, “25% of employers fire at least one pro-union worker; 51% threaten to close a worksite if the union prevails; and 91% force employees to attend one-on-one anti-union meetings with their supervisors.” Hmmm, let’s see you’ve just received a negative employee performance review from your supervisor whether justified or not. Now you are obligated under pain of potential termination to meet with that supervisor about you joining a union.

    According to the AFL-CIO, “Every day, corporations deny workers the freedom to decide for themselves whether to form unions to bargain for a better life. They routinely intimidate, harass, coerce and even fire workers who try to form unions and bargain for economic well-being. America’s working people are struggling to make ends meet these days and our middle class is disappearing. The best opportunity working people have to get ahead economically is by uniting to bargain with their employers for better wages and benefits. Recent research has shown that some 60 million U.S. workers would join a union if they could.”

    The Employee Free Choice Act will provide for employee majority sign-up instead of the present majority vote system, which is subject to management coercion and harassment. Employers typically use intimidation and threats adversely affecting the workers employment experience by:

    (1) manipulation of compensation
    (2) changing working conditions
    (3) changing work hours
    (4) demotion
    (5) negative job reviews
    (6) termination

    These tactics are also synonymous with violations of federal discrimination and retaliation laws.
    In my opinion, the EFCA would foster trust, accountability and respect from both sides. In my experience as a mediator when two disputing parties reach amicable resolution or a “win-win” they come away with a greater level of understanding and mutual respect for each sides position. Just as the paradigm shift in audio media technology finally forced me to put down my cassette player and pick up a cd player, “At Will” employment is another dinosaur whose time has come for a decent burial!.

  3. So it’s pretty clear what’s going on here.
    Hoffa and his mobster buddies can’t break the knees of those who resist his attempts to “unionize” them — or, in plainer language, steal a hunk of their paycheck every week whether they like it or not — if he doesn’t know for sure whether they voted against unionization.
    This law is to be passed in the interests of Justice, to make sure that nobody who actually voted to unionize ends up wearing cement shoes.
    They question is, what percentage of the corpses of the people who vote not to unionize will be found, and what percentage will go the way of Daddy Hoffa?

  4. The current embodiment of the so-called Employee Free Choice Act stems from Canada’s labor law system, as well as a flawed 1994 comission study called the Dunlop Commission Report, where former labor secretary Dunlop used union organizer data to push an agenda that, while not quite as radical as EFCA, paved the way for the current bill.
    It is not so much the methodology of unionization as it is the impact upon businesses and their ability to create and maintain jobs. As unions often add 15-30% (absent wages and benefits) to the costs of running a business, it will not be long before more and more businesses close or seek more refuge overseas–this is why, in 2006, when we launched, we called it the “Kill American Jobs Act.”
    Unfortunately, unions are hijacking this election–spending a billion dollars– to get their puppet-candidates elected, all who have pledged to pass this job-killing legislation.
    The reason the vast majority of employers are against this job (and company) killing legislation is because they know what it takes to create and maintain jobs–unions do not.

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