NEW YORK TIMES ON THE EMPLOYEE FREE CHOICE ACT: ALL THE PRO-UNION LIES FIT TO PRINT?

Wow. We had no idea yesterday when we picked apart U.S. News & World Report's coverage, that the New York Times, and its notoriously suspect fact-checking practices, would provide us with equal, if not greater, fodder so soon after. Yet there it was in their March 7 editorial, "The Right to Organize."

Where to begin?

The most significant change in the bill is known as a majority signup, which would allow employees at a company to unionize if a majority signed cards expressing their desire to do so. Under current law, an employer can reject the majority’s signatures and insist on a secret ballot.

Actually, an employer cannot lawfully refuse to recognize a union bargaining representative if it has confirmed that the union represents a majority of the employees in an appropriate bargaining unit. Instead, the issue which the secret-ballot election procedure is designed to address is whether or not the cards signed by employees are an accurate reflection of majority status for the union. The E.F.C.A. ignores the widely recognized reality that an employee may sign an authorization card produced by a union organizer for numerous reasons other than a genuine, informed desire for representation.

- “Workers sometimes sign authorization cards not because they intend to vote for the union in an election but to avoid offending the person who ask them to sign…or simply to get the person off their back….” NLRB v. Village IX, Inc., 723 F.2d 1360, 1371 (7th Cir. 1983).

- “[I]t is beyond dispute that secret election is a more accurate reflection of the employees’ true desires than a check of authorization cards collected at the behest of a union organizer.” NLRB v. Flomatic Corp., 347 F.2d 74, 78 (2d Cir. 1965).

- “It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a ‘card check,’ unless it were an employer’s request for an open show of hands.” NLRB v. S.S. Logan Packaging Co., 386 F.2d 562, 565 (4th Cir. 1967).

It is little wonder the U.S. Supreme Court has held that card-check is “admittedly inferior to the election process.” NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969).

But in a disturbingly high number of cases, the employer uses the time before the vote to pressure employees to rethink their decision to unionize.

“Disturbingly high”? Exactly how many is that? More than "Perplexingly high," but less than "Horrifyingly high"? When lacking factual support, one can always resort to hyperbolic adjective, we suppose. Actually, the time between the filing of a petition and the protected, secret-ballot election is used by all parties to the election to exercise their “free speech” rights to communicate lawfully with the employees regarding the potential consequences of union representation. What the AFL-CIO and the other E.F.C.A. supporters truly resent is the ability of employees to receive more than one side to the story before committing themselves.

As courts have recognized:

- “[S]ection 8(c) [of the National Labor Relations Act] not only protects constitutional speech rights, but also serves a labor law function of allowing employers to present an alternative view and information that a union would not present.” Healthcare Ass’n of New York v. Pataki 471 F.3d 87 (2d Cir. 2006).

- “’[P]ermitting the fullest freedom of expression by each party’ nurtures a healthy and stable bargaining process.’” Americare Pine Lodge Nursing & Rehab Ctr. v. NLRB, 164 F.3d 867, 875 (4th Cir. 1999).

- “It is highly desirable that the employees involved in a union campaign should hear all sides of the question in order that they may exercise the informed and reasoned choice that is their right.” NLRB v. Lenkurt Elec. Co., 438 F.2d 1102, 1108 (9th Cir. 1971).

- “The guaranty of freedom of speech and assembly to the employer and to the union goes to the heart of the contest over whether an employee wishes to join a union. It is the employee who is to make the choice and a free flow of information, the good and the bad, informs him as to the choices available.” Southwire Co. v. NLRB, 383 F.2d 235, 241 (5th Cir. 1967).

The bill’s opponents charge that replacing secret ballots with the majority signup would be undemocratic. But the current system is by no means fair. The law prohibits union advocacy by employees during work hours ….

Simply and patently false. Nowhere in the National Labor Relations Act, or any caselaw does it say that employees are prohibited from “union advocacy” during working hours. Nowhere. Whether this is a blatant New York Times lie or simply AFL-CIO ventriloquism is unclear – but it is plainly false and, at the least, indicative of shoddy journalism.

In 2005, according to the most recent annual report of the National Labor Relations Board, 31,358 employees were receiving back pay after being discriminated against for their union-related activities.

Once again, The National Labor Relations Board Seventieth Annual Report (2005) says absolutely nothing of the sort. In fact, what it says – at Table 4 of the Appendix – is that for the fiscal year, 31,358 “Employees receiv[ed] backpay…from either employer or union.” Nowhere does it specify that these sums – some of which were paid by unions for alleged wrongdoing – were awarded upon a finding of unlawful discrimination for union-related activities. In fact, Table 4 also says that 25,620 of these employees received backpay – from either the employer or the union – pursuant to an "informal settlement" between the parties. Informal settlements almost never contain findings of wrong-doing, and almost always contain non-admissions by the parties.

In research for a bipartisan Congressional commission in 2000, Kate Bronfenbrenner, a labor relations professor at Cornell University, reported that 25 percent of employers illegally fired at least one employee during organizing campaigns.

Indeed, Bronfenbrenner’s “bipartisan”-commissioned report indicates at page 43 that “…one in every four employers in our sample discharged employees for union activity….” And from where exactly did Ms. Bronfenbrenner obtain information about her “sample”? She relied entirely on information supplied exclusively from surveys and interviews with union organizers! Pages 12-13 of Kate Bronfenbrenner, “Uneasy terrain” The Impact of Capital Mobility on Workers, Wages, and Union Organizing,” states for “Research Methods”:

“Lead organizers in these campaigns were mailed surveys asking them a series of questions about plant closings and threats of plant closings along with data on election background, organizing environment, bargaining unit demographics, company characteristics and tactics…. In addition, we used the AFL-CIO UNICORE database, financial filings, newspaper and trade journal reports, and reports from union organizers….”

Company representatives were not similarly surveyed or interviewed.

Labor unions have a role to play in helping to fix today’s economic ills — most notably, worsening income inequality, a problem that’s caused in part by unions’ decline and the workers’ resulting lack of bargaining power.

That’s an AFL-CIO talking point, disguised as a fantastic factually unsubstantiated sweeping conclusion by the New York Times editorial board. One would expect – perhaps, perhaps not – a little more fact-checking and journalistic integrity from “the paper of record.”

Or have they hired Jayson Blair back?

More on this excuse for serious editorial comment at NAM's ShopFloor.org, and at DeMediacratic Nation.