There has been a growing controversy over a proposed new law called the Employee Free Choice Act, or EFCA, also known as the “card check” bill. This bill was passed by the House of Representatives in March 2007, and has since been stalled in the Senate.
While U.S. workers have had the legal right to organize unions to represent them for more than 70 years, the actual ability of workers to unionize has been undermined through: an increasingly hostile political and legal climate, a wide range of coercive anti-union strategies by many employers, and a growing industry of firms and contractors who specialize in preventing union organizing.
The EFCA seeks to restore the original U.S. commitment to the rights of workers to organize, which was established through the passage of the National Labor Relations Act, or NLRA. If passed in its current form, the EFCA would result in three major changes in the law.
1) Streamlining union certification by allowing unions to be certified by the National Labor Relations Board in cases where a majority of eligible workers have signed union authorization cards. This “card check” process is a form of “voluntary recognition” of unions.
2) Facilitating initial collective bargaining agreements by closing loopholes in labor law that allow employers to engage in delays and intimidation against workers trying to organize. Also, it provides for mediation and binding arbitration if a contract agreement is not reached within 90 days.
3) Strengthening enforcement by providing greater NLRB penalties against employers who violate the law.
The damaging and misleading attacks on the EFCA, typically by employer-funded ad campaigns, charge that this law would be undemocratic for workers, since it does not require NLRB secret ballot elections when a majority of workers have signed union recognition cards. However, given the documented history of both legal and illegal strategies by many employers to thwart organizing by workers, one wonders what the real reason is for employer opposition to the EFCA. Is it real concern for workers having a voice, or is it actually a fear that employees may find it easier to organize unions and thus obtain the benefits of a union with better pay, benefits and working conditions?
The NLRA originally barred employers from interfering in union organizing drives. The rules were simple. When a majority of workers signed recognition cards or petitions, a union was recognized. If there was a “legitimate doubt” determined by the NLRB about whether a majority had actually signed, the NLRB would then hold a secret ballot election. Otherwise the newly formed union and management would be required to negotiate a contract in good faith.
Studies show that the existing NLRB union election process is not very democratic. For example, political scientist Gordon Lafer found that virtually none of the basic elements of democratic elections are present in NLRB elections. He states: “Apart from the use of secret ballots, there is not a single aspect of the NLRB process that does not violate the norms we hold sacred for political elections…The NLRB election system has come to be defined by intimidating, coercive, and undemocratic employer behavior — both legal and illegal. Current federal law fails to protect the rights that the U.S. Congress thought it had bestowed to workers more than 70 years ago.”
Opponents of the act maintain that workers would face union intimidation if it were passed. But surveys of workers in organizing drives show that intimidation by employers is far more common. One study found that nearly “four times as many workers reported that management coerced them as opposed to the union.” It is difficult to grasp the extent of employer intimidation commonly used in these campaigns. Another study revealed that “when faced with organizing drives, 30 percent of employers fire pro-union workers, 49 percent threaten to close a worksite if the union prevails, and 51 percent coerce workers into opposing unions with bribery or favoritism.” While it is illegal to fire workers for supporting unionization, in practice this and other punitive practices are done routinely by anti-union employers.
The current hostile climate toward unions and workers who want to organize has resulted in a greatly lopsided legal environment. The proposed Employee Free Choice Act is an attempt to create a fairer and simpler process of obtaining union recognition, by restoring the original U.S. legal commitment to ensuring that workers have a chance to obtain a collective voice in the workplace.
Bill Murphy and Gary McGrane are labor educators at the University of Maine. The briefing paper on which this column is based is available at: http://dll.umaine.edu/ble/. This column does not necessarily reflect the views of the University of Maine.