The Employee Free Choice Act now heads to the Senate. If only a Senator could be fired every 17 minutes…
Ted Kennedy’s Health, Education, Labor and Pensions (HELP?) Committee received testimony on the proposed law on March 27th and then submitted the bill to the Senate 2 days later. Seems odd to take testimony on a bill that hadn’t even been proposed yet, but this thing’s introduction was a forgone conclusion ever since Democrats swept last November’s elections.
The text of the Senate version of the bill is not available. What is available is the list of cosponsors – there were only 46 of them. Four Democratic Senators refused to co-sponsor the bill: Sen. Lincoln, (D-AR), Sen. Nelson (D-NE), Sen. Pryor (D-AR), and Sen. Salazar (D-CO). This is surprising.
The AFL-CIO has been boasting for weeks that it has 52 votes in the Senate, which at this point seems unlikely. Of course things can change awfully quick in Washington. These four Democrats are certainly going to start getting a lot of heat from their union contributors – so is Arlen Specter, a Republican who co-sponsored similar legislation last session.
Unions provided the usual suspects during the hearing to testify in support of the legislation, including law professor Cynthia Estlund and Dr. Lawrence Mishel of the primarily union-funded Economic Policy Institute. They – along with Ted Kennedy, the AFL-CIO and just about every other supporter of this legislation – continue making the ridiculous assertion that employees are fired for union organizing every 17 minutes.
This claim about firing employees during organizing campaigns has been repeated by unions and their supporters so many times that at this point it is just accepted as fact. So I think it bears repeating here that the claim is based on an intentional misreading of NLRB statistics. It is a lie.
The claim is made based on NLRB statistics which state that in 2005 over 35,000 employees received back pay from the NLRB in board proceedings (either a Board order or a voluntary settlement between the parties). What union supporters and the so-called academics who write and repeat this stupid statistic fail to mention are the following facts:
- These 35,000 employees charged both companies AND unions with unlawful conduct. Unions are also charged with unlawful conduct and required to pay back pay to employees.
- Many of these employees are already union members. For example, I know personally that 200 of these 35,000 employees received back pay related to a strike in 2005. That is only one case. These employees – and certainly thousands more like them – were not fired for trying to form a union.
- In many – if not most – of these cases, there is never a finding of unlawful activity by the employer. Instead employers and unions often settle cases in order to avoid the expense, delay and aggravation of going through a Board hearing process. In the case I mentioned above there was no finding of unlawful conduct whatsoever – it was a voluntary settlement.
Are people sometimes fired illegally during union organizing campaigns? Sure, it happens. And the law prohibits that and penalizes an employer for doing it. In some cases it can actually lead to a bargaining order where the union is brought in without winning an election – sounds kind of like the EFCA. Is the behavior widespread? Not by a long shot.
I can only speak from my own personal knowledge of the industry, but that knowledge is extensive. I don’t know of any lawyer or consultant who recommends that clients fire union organizers. In my career every arguably unfair termination occurred before I got on the scene – and I’ve advised clients to reinstate someone prior to there ever being a charge or a hearing because of the factors listed above. Most of the time the organizer is treated much more favorably than they would be absent the organizing campaign. This is because companies fear creating a martyr or buying an unfair labor practice charge. Ironically, treating an organizer this way is actually illegal, but it is much more common in my experience. An employer who discriminatorily fires an organizer is stupid, plain and simple.
