"EFCA" is not just an abbreviation for the Employee Free Choice Act. In a larger sense, it stands for a dramatic shift in our nation’s labor relations policy that the Obama Administration has begun implementing.
The most recent example of this shift is the proposed change in the procedure for selecting union representation under the Railway Labor Act, the labor statute that covers airline and railroad workers. For more than 75 years this law has required that a majority of eligible workers vote affirmatively for union representation before a union is entitled to bargaining rights. This process has worked well. In fact, union representation in the railroad and aviation industries far exceeds union representation in other private industry.
Under a rule proposed by the current, labor-dominated, National Mediation Board, however, the long-standing rule would be eliminated. A new rule allowing a minority of the eligible employees to decide the issue would replace it. Representation would be determined by a majority of those voting rather than by a majority of eligible voters.
So why change a system that is working? It’s simple. The unions are attacking long-standing policies and procedures to make their selection easier. Even though the National Mediation Board repeatedly has rejected union efforts to change the way elections in these industries are conducted, it looks like the labor movement has found a pivotal new friend at the Mediation Board. If adopted, and if it withstands the substantial legal challenges that are anticipated, a small minority of eligible employees will be able to make the decision for the entire group. Mediation Board rules already make voting for unionization very simple — by allowing telephone and Internet voting. Under the proposed new rules, employees will no longer be able to vote “no” by “ripping up” their ballots and unions need worry less about appealing to the entire workforce. They will not have to prove an absolute majority of employees wants representation. As long as more employees vote yes than no, even if only a small percentage of the workforce may actually vote, that will do.
No one can predict where this will end. While the Mediation Board says it will not reduce the showing of interest needed to trigger an election (currently 35%, if the employees are unrepresented), nothing would stop it from changing its mind once again. Other long-standing Mediation Board policies require representation on a system-wide (usually national) basis. Will those be the next barricades to easy unionization which labor will storm, with the Administration’s eager support?