On July 5, 2007, L.A.Times' senior editorial writer Michael McGough published a thoughtful column on the apparently defeated Employee Free Choice Act of 2007. While Mr. McGough echoed the Times’ earlier opposition to the bill, he can hardly be accused of being anti-union. In fact, his words appeared to suggest that he supports unionization:

Given a fair choice in a secret ballot — and one that is not conducted in the shadow of harassment by management — workers often will decide that affiliating with a union is in their interest. In general, unions in a workplace promote not only job security but safety as well.

Mr. McGough’s objections to the EFCA seem quite rational:

You don't have to be an apologist for employers to recognize that the so-called card-check system invites abuses. Of course employers shouldn't be able to punish workers for wanting to join a union. But neither should union organizers be able to pressure unwilling or hesitant co-workers to authorize a union.

As The Times editorial board has observed, the bedrock principle of federal labor law is not unionism at all costs, but the right of workers to choose whether they want to affiliate with a union.

He closes the column by suggesting a better solution:

Instead of railing against Republicans for blocking action on this flawed bill, Democrats should regroup and propose legislation that would focus on the real problem: inadequate penalties for employers who intimidate or harass workers who want to unionize. That would be a real Employee Free Choice Act.

Mr. McGough did not have to look far to find evidence that the National Labor Relations Act works pretty well in most instances.

On December 4, 2006, the International Brotherhood of Teamsters filed a petition with the National Labor Relations Board seeking the right to represent some 288 pressroom operators at the L.A. Times. Based on the statements made by labor’s supporters during the EFCA debate, one might assume that the company immediately began legal maneuvering to delay an election so that it could intimidate workers. That would not be an accurate assumption. In fact, the NLRB conducted a secret ballot election on January 4 and 5, 2007 – just 32 days after the request was made. While the Company campaigned for employees to vote against union representation, there does not appear to have been any mistreatment or discharge of union activists or any other type of misconduct of the sort complained of by union witnesses at the Congressional hearings on the Employee Free Choice Act. The company published a website with pretty typical information about collective bargaining expectations, dues, strikes, and the like. The website contains a video of the Publisher summarizing the company’s position. It’s hardly a heavy-handed piece. (View the video HERE.)  Of course, the union had a website too.

The employees apparently felt free enough to vote for union representation by a margin of 140-131. The margin may have been even smaller, but four ballots were challenged and not counted because they would not have affected the results.

In such close elections, it is not at all uncommon for the losing party to file objections claiming that some conduct of the other party interfered with the election. In this case, just a few tainted votes could have spoiled the entire election results. The company alleged that union agents made a some veiled threats and distortions and campaigned at the polling places. However, in contrast to the claims made by EFCA proponents that delays caused by such challenges are interminable and are ruled upon by an anti-union agency, the Regional Director of the NLRB’s Los Angeles Region issued a report on March 16, 2007 overruling the employer’s objections. As was its right to do, the employer filed exceptions to that report, and on June 11, 2007, the five-member Board in Washington, D.C. agreed that the election was a fair one and certified the union as the representative of the employees. While it is still possible that the company could challenge the Board’s ruling at the U.S. Court of Appeals, there are no reports that it plans to do so.

So, in what typical of NLRB representation proceeding, a secret ballot election was held within six weeks or less of the date of the union’s request. Both sides communicated with employees. Employees freely discussed the union issue with each other while at work and were permitted to wear hats, armbands, etc. to openly declare their positions if they so chose. Unlike what occurs in many card-check determinations, every single employee that would be affected by the decision knew that there was going to be a vote, knew when and where the vote was to be held, and was given an opportunity to either vote for or against union representation. Most importantly, they were allowed to do so in private, without some partisan looking over their shoulder. Questions about improper conduct were addressed quickly by the NLRB. the whole process was completed in about six months. And, as happens more often than not, because a majority of voters selected representation, the employees have their union.

Contrary to the inflammatory rhetoric and dubious statistics cited during the EFCA debate, the current system of selecting union representation still works pretty well. Yes, as Mr. McGough points out and as we’ve said before, there should be efforts to curtail the conduct of habitually lawbreaking employers (and unions). But that can be done without destroying a legal process that has functioned quite well for decades.