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Employee Free Choice Act - As American as Apple Pie? Part 3

Hotel Consultant Stanley Turkel, MHS, ISHC provides a “truth serum” in his opinion to AH&LAs President/CEO Joseph McInerney and AAHOAs President Fred Schwartz.

Friday, April 17, 2009
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To read the AHLA letter to the editor that precipitated the following comments, click here.

The misinformed response by Joseph McInerney (JMc) President/CEO, American Hotel & Lodging Association, must be answered and set straight. JMc sounds like someone who can’t be bothered with the facts because his mind is already made up:

  1. JMc’s starting point is that the current troubled condition of Americas auto, steel and airline industries is the fault of their well organized unions.
  2. Nonsense. In the auto industry, it was poor management that made the errors when it: 1) built the wrong automobiles 2) failed to recognize that the gasoline-dependent internal combustion engine was outdated 3) failed to plan ahead and design cars with alternative fuel engines and better mileage.

  3. JMc calls me wrong when I stated that “Under the Employees Free Choice Act, workers are still free to choose secret ballot elections.”

  4. He then quotes the completely unrelated Section 2(a) of the EFCA bill which states that if “a majority of the employees… has signed valid authorizations…the Board shall certify….the labor organization as the representative….” This Section does not preclude or eliminate the secret ballot option which is still available to employees if they choose it.

  5. JMc then castigates the mediation process included in the EFCA bill. Does he need to be told what all the rest of us know: mediation is a thoughtful technique to bring two opposing sides together. Mediators have no real power to decide the outcome, only the attempt to persuade both sides in a dispute to give a little to gain an agreement, Mediators do not “impose contract terms for workplace conditions if the employer (does) not agree to union terms within 120 days of the union being recognized.” JMc calls this government mediation “chilling”. What is chilling is his gross failure to distinguish mediation from binding arbitration. He states that Americans are overwhelmingly opposed to the binding arbitration provisions of EFCA. JMc should know that almost every hotel franchise agreement of the big six franchise companies (Hilton, Marriott, IHG, Starwood, Choice and Wyndham) contain binding arbitration clauses (which are usually non-negotiable). If JMc is opposed to these binding arbitration clauses, he should speak up.

Despite what JMc claims, the current process for forming unions is far from ideal and is grossly unfair to the employees. 20% of all workers who are active union supporters get fired for legal union activity. Does JMc support employer spying, threats and firings of workers. Is this the American way? The employer has all the power and can force workers to attend meetings during work hours to hear anti-union messages. Meanwhile, access for union organizers is heavily restricted.

AAHOA’s Response
To see Stan Turkel’s commentary article that caused AAHOA to write the following note, click here

AAHOA Reply to Editorial In Support of the Employee Free Choice Act Written By Stanley Turkel in the April 8, 2009 Edition of Hotel Interactive®

Dear Editor:

In reviewing the Employee Free Choice Act, I am reminded of the words of Louis D. Brandeis: "If we desire respect for the law, we must first make the law respectable."

The Employee Free Choice Act (also known as the Card Check bill) is anything but respectable. It violates every principal of freedom and liberty that we hold dear in this country. It takes away an employee's right to make a free choice as to whether to form a union in the workplace by stripping away the secret ballot process. It takes away an employer's right to determine how best to operate a business and reward the hard-working employees that contribute to the company's success, by instead allowing a federal arbitrator to make such decisions. It takes away the rights of both the employer and the employees to work together for the benefit of the public and their customers, by precluding an employer from promoting the hard-working employees, and prohibiting the employees from stepping forward to assist in handling any work duties other than those authorized under their union contracts.

For AAHOA members, who own and operate everything from the small independent hotels to the large full-service properties, this will devastate their businesses. As those who have worked in a hotel are fully aware, it is sometimes necessary for an employee to perform more than one job function if a worker is absent due to illness, or for a General Manager to check in guests at the front desk if they are running behind, so the hotel can provide excellent services to the traveling public. Moreover, in both small and large hotels, it is common practice to promote the hard-working and valued employees to higher positions with increased duties and responsibilities, as well as better pay. These practices would no longer be allowed if the Employee Free Choice Act is passed, because employees would only be allowed to perform those tasks and job duties identified in the binding employment contracts that are determined by a federal arbitrator, and they would not be allowed to do anything else.

It is telling that in recent weeks, after the Act has garnered substantial media attention and the true facts have been revealed, several leading members of Congress have courageously stepped forward to announce a change from a "yes" vote in favor of the Act to a "no" vote in opposition to the legislation. These members have included Senator Arlen Specter (R-PA), Senator Blanche Lincoln (D-AR), and Congressman Allen Boyd (D-FL).

In a speech on the floor of the U.S. Senate on March 24, 2009, Senator Specter voiced opposition to both the card check scheme and the job-killing binding interest arbitration provision. Senator Specter called the secret ballot process "the cornerstone of how contests are decided in a Democratic society." He also said that the requirement for mandatory arbitration may subject employers to contracts they cannot live with. Senator Specter further sided with the studies that show increasing union membership will lead to increased job losses, making this "a particularly bad time" to enact this bill.

Senator Specter's decision dealt a blow to the unions who had been counting on his support to get the bill passed. Two weeks after Senator Specter's announcement, on April 6, 2009 Senator Blanche Lincoln of Arkansas became the first Senate Democrat to oppose the bill.

"I consider both the labor and the business communities to be my friends. However, now that we need all hands on deck including business and labor, to get our economy moving again, this issue is dividing us," Senator Lincoln said in a statement. "While I may not have been clear about my position in the past, I am stating today that I cannot support Employee Free Choice Act in its current form and I can't support efforts to bring it to Senate consideration in its current form."

AAHOA applauds the courageous positions of Senators Specter, Lincoln, and Congressman Byrd in doing an about-face of their prior support concerning this devastating legislation. With that said, I must also make clear that for AAHOA, there is no room for compromise on this bill. We urge our members and all industry leaders to stand firm in their strong opposition to the Act that could undermine everything that we have worked so hard to develop and support, including our hotels, our valued employees, and the traveling guests whom we serve.

For those leaders, including in the hospitality industry and other influential positions, who have not yet had an opportunity to fully analyze this bill and what it means for our businesses, the economy, and this country, I implore you to do so. None of us can afford to be misinformed, or to rely on the statements or opinions of others. We must each make an effort to get the facts so we are not making decisions or commenting on such important issues "in the dark."

Specifically, while the media is filled with the arguments being advocated by union leaders in support of the bill, please take the time to review the facts and statistics offered by the National Labor Relations Board (NLRB) about the short amount of time it generally takes to conduct a secret ballot process (i.e., the average time for a union election to be held under the current system is just 39 days and 94 percent of the elections are held within 56 days). Further, do not be deceived by those who claim that employees may still choose a secret ballot election under the Act. The legislation clearly and unequivocally states that if a majority of employees have signed the union cards, the National Labor Relations "Board shall not direct an election but shall certify the individual or labor organization as the representative..." Finally, please understand that Federal courts have repeatedly ruled that secret ballot elections are the preferred method of ascertaining whether a union has the support of a majority of its employees. The U.S. Supreme Court recognized that the "card-check" is "admittedly inferior to the election process." (NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).)

After arming ourselves with the facts, let's stand united in support of laws that will improve our industry and our communities at large, and remain unwavering in strong opposition to those that will tear us down.

Thank you for the opportunity to discuss this important legislation and the impact it will have on our industry.

Stanley Turkel’s Response To Fred Schwartz’ letter

Fred Schwartz (FS), President of the Asian American Hotel Owners Association quotes the words of Louis D. Brandeis. I am reminded of another quotation by Justice Brandeis, “We can have a democracy or we can have great wealth concentrated in the hands of the few. We cannot have both.”

Despite AAHOAs characterization of EFCA as “anything but respectable,” I must point out that the AAHOA position is anything but accurate. To state that “EFCA violates every principal of freedom and liberty that we hold dear in this country” is windy rhetoric that is untrue and unsupportable. EFCA proposes to amend the National Labor Relations Act which was first passed in 1935. The original bill contained two methods for employees to express their viewpoint about forming a union: 1) card-check 2) secret ballot. But the decision as to which method would be used was left up to the employer. Over the intervening 74 years, the overwhelming result has been for employers to opt for secret ballot elections. My initial reaction was like yours: let’s keep the secret ballot. But upon more careful investigation, I discovered that, over time, the secret ballot procedure has been corrupted by some employers, as follows:

  • The current process is far from ideal and is grossly unfair to employees.
  • 20% of all workers who are active union supporters get fired for legal union activity
  • Some employers engage in spying , threats and harassment of workers
  • Employers can force workers to attend meeting s during work hours to hear anti-union messages.
  • Union organizers are prevented from entering the hotel to speak to employees.

The AAHOA article makes the following completely inaccurate statement: “Theses practices (flexibility in assigning employees) would no longer be allowed if the Employees Free Choice Act is passed, because employees would only be allowed to perform those tasks and job duties identified in the binding employment contracts that are determined by a federal arbitrator, and they would not be allowed to do anything else.”

The proposed procedure in EFCA is dramatically different than what is described above. After the election (secret ballot or card-check) collective bargaining begins within ten days of certification of the union as the bargaining representative. If the union and the company cannot agree upon the terms of a first collective bargaining contract within ninety days, either party can request federal mediation. If mediation is not successful in thirty days, the disagreement goes to binding arbitration. This is standard procedure in thousands of contracts including most hotel franchise agreements.

Please do not be deceived by those who call EFCA un-American or who state that employees will lose the opportunity for a secret ballot if EFCA passes. These rules have been in existence for 74 years. The long-overdue change being proposed in EFCA is that the employees will make the choice. The more workers who join the middle class will make our wonderful country more democratic and, in the long run, more prosperous.

To find out how effective the current NLRB system actually is – in other words, how well it reflects workers’ wishes to organize into unions and bargain contracts with management – MIT Sloan School of Management professor Thomas A. Kochan and MIT Ph.D. student John Paul Ferguson used federal data to track the progress of more than 22,000 union organizing drives between 1999 and 2005. They found that “only one in five cases that filed an [NLRB] election petition ultimately reached a first contract [between workers and management],” which they reported in a Boston Globe article.* “This is despite all the cases already having shown substantial and likely majority support for representation.”

They criticized the current system by asking, “How can anyone who thinks elections are a bulwark of democracy support a system in which a third of those interested in an election never get to hold one? Why would anyone put faith in a process that offers them a 1-in-5 chance of success?” Kochan and Ferguson thus called for passage of the Employee Free Choice Act along with other reforms.

*Thomas A. Kochan and John Paul Ferguson, “Modernizing Labor Law,” Boston Globe, June 21, 2007.

Stanley Turkel, MHS, ISHC operates his hotel consulting office as a sole practitioner specializing in franchising issues, asset management and litigation support services. Turkel’s clients are hotel owners and franchisees, investors and lending institutions. Turkel serves on the Board of Advisors and lectures at the NYU Tisch Center for Hospitality, Tourism and Sports Management. He is a member of the prestigious International Society of Hospitality Consultants. His provocative articles on various hotels subjects have been published in the Cornell Quarterly, Lodging Hospitality, Hotel Interactive®, Hotel-Online, AAHOA Lodging Business, etc. Don’t hesitate to call 917-628-8549 or email stanturkel@aol.com.

  • If you need help in negotiating your franchise agreement
  • If you have a problem with encroachment and impact
  • If you need an expert witness in a hotel litigation law suit
  • If you need a featured speaker at your company or organization meeting.

  • Stanley Turkel is available as featured speaker on the following subjects:
    • From Ragas to Riches: The Origin and Growth of the Asian American Hotel Owners Association
    • Great American Hoteliers: Pioneers of the Hotel Industry
    • Franchise Advisory Councils: Powder Puffs or Powerhouses?
    • Henry Morrison Flagler: The Robber Baron Who Invented Florida
    • Fred Harvey: Great Food. Unique Hotels and the Harvey Girls
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RE: Employee Free Choice Act - As American as Apple Pie? Part 3 article link
Stanley Turkel is absolutely wrong! I suggest that there is nothing to prevent unionized employees from banding together to buy, own and operate their own hotels under the "free enterprise" system, which SYSTEM has made the United States the leading economy in the world. Force and compulsion does not work! The downfall of the US economy is directly related to business people relying on "high paid consultants" rather than listening to and responding to the needs of their guests and customers!!!
Posted by: Dave L Nielsen - CCIM, CHA
Email: dln@bluebellrealty.net
4/17/2009

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