Op/Ed: 'Card check' remains a threat to U.S. businesses

Many people do not realize that the Employee Free Choice Act (Card Check Bill) that was introduced in Congress earlier this year is still being debated on Capitol Hill. It’s true that a key provision of the original bill — elimination of employee right to vote by secret ballot — appears to be off the table, but negotiations are ongoing to formulate new legislation that will be just as detrimental to Virginia businesses as the original version.

For example, binding arbitration remains an important part of the new legislation. What is clear from labor experts and economists who study these issues is that binding arbitration is a radical idea that is out of step with our freedom of contract and other business rights.

Binding arbitration is a mandate from the government that says that if a union gains representation at a company, the parties will have a set amount of time (120 days) to come up with a mutually agreed upon contract or else the federal government will step in and impose the terms of the initial contract for up to two years.

There are several variations of binding arbitration being mentioned as part of a compromise. One variation, called “last best offer arbitration,” mimics what’s done in major league baseball with compensation disputes whereby each side presents its best final offer and the arbitrator picks one or the other. That may work in the case of an individual baseball player but not in the case of a whole business!

Any proposal that takes away the fundamental right of the business owner to negotiate the terms of an employment contract is unacceptable under any circumstances. As a business owner, I know most facets of my company and my industry. Most importantly, I know what I can pay my employees and still maintain profitability. I’ve been a part of my community for decades and understand what I need to pay to attract quality workers.

A government arbitrator who knows little about my industry and nothing about my business cannot possibly gain enough of an understanding to form a labor contract with my employees. If the government is making the contract, will the government then be writing the payroll checks? The United States has become the leading economic power in the world through entrepreneurship and free-market capitalism, not through the government controlling important business decisions.

Other elements of what’s being discussed as an alternative bill are also deeply troubling. One provision would shorten the timing of union elections from the current time frame of 42 days to only 5 to 10 days after a union files a petition for election with the NLRB.

So why do the unions want to speed up the time to just a few days? The current system gives both sides ample time to present information to the employees and give them an opportunity to ask questions and challenge the validity of assertions from both sides. Common sense should tell you that 5 to 10 days is not enough time to debate an issue of this importance and make an informed decision. Of course, unions know that the more informed employees become, the less likely they are to vote for a union.

To further limit employer’s freedom of speech, another provision of the so-called “compromise” would prohibit companies from having mandatory meetings with employees on company property and company time. But amazingly, under the compromise proposal unions want access to company property to give them time to campaign with employees.

Under the current system the company can present its side of the story while employees are at work. However, the union has the right to approach workers outside the workplace — homes, parking lots, just about anywhere — to make their case.

Communication is balanced because the company cannot approach employees outside the workplace. So while it seems on the surface that giving unions access to employees on company property would “level the playing field,” it would actually give unions a decided advantage.

Finally, while business groups and members of Congress have focused on the notorious “card check” provision of EFCA that would have taken away the right to secret ballot in union campaigns, there has been virtually no debate over the bill’s onerous and unprecedented penalties against employers who may run afoul of vague NLRB rules if an employer says something “wrong” to its employees during the NLRB election process. EFCA dramatically escalates penalties for such violations and would subject employers to a $20,000 fine for each questionable statement the employer might make, for example, in trying to explain to employees the sensitive issues of whether unions can cause plant shutdowns or loss of customers.

Unions are schooled in organizing settings to file numerous unfair labor practice charges against employers and EFCA’s punitive terms would thus expose employers to new costly litigation with uncertain outcomes. Threatened with this new and substantial liability, employers — particularly smaller employers — would be coerced into silence.

Generations ago, unions may have played a constructive role representing employees seeking a fair wage and safer working conditions. But in more recent times, as more and more employees have learned that unions no longer “earn their keep,” union membership has been falling throughout the United States. Today, unions represent only 7.6 percent of the private sector workforce nationally and only about 5 percent of the Virginia private sector workforce. So the EFCA, even in its new “compromised” form, is not about correcting imbalances in our nation’s labor laws. Instead, it is designed to stifle debate and stack the deck in favor of unions simply to enable them to make millions of dollars in dues from new members.

We need to encourage our congressional representatives to reject unreasonable compromises with regard to the Employee Free Choice Act so that businesses may continue to freely communicate with their employees and to operate without unnecessary governmental interference.

Davenport is the chairman of First Piedmont Corp. and Davenport Energy Co. in Chatham and has been active in numerous civic and charitable efforts throughout the commonwealth.