Proposed changes to federal labor law don’t often provoke media furor. The big exception is the Employee Free Choice Act, or EFCA, which would change the way unions are certified as bargaining agents by the National Labor Relations Board, or NLRB. What’s the big deal?
Certification begins when workers sign authorization cards, indicating that they would like to be represented by a particular union. Under current law, if more than 50 percent of employees sign cards, the employer can decide that this “card check” — overseen and validated by the NLRB — constitutes a de facto election and recognize the union. Or the boss can refuse to recognize the card check and require a secret ballot vote. It’s the employer’s choice.
EFCA would shift this decision to the employees. If they want a secret ballot, they get one. If they don’t, no secret ballot would occur, as long as a majority signs cards indicating a preference for union representation. There are, of course, safeguards. Allegations of illegal coercion, for example, would trigger a secret ballot.
It seems simple. Yet nearly all the media frenzy surrounding EFCA — those TV ads, the OpEds, the phony telephone polls — stems from this change.
EFCA opponents seem to believe that competent adults — people who regularly say no to drugs, telemarketers, and their own teenage children — find it so inherently intimidating to be asked to sign a union authorization card that they invariably do so without a whimper of protest. They say that the only fair vote is by secret ballot.
EFCA supporters point out that many votes usually considered fair are not secret: a show of hands in a public meeting, a voice or roll-call vote in a legislative assembly. Nor does a secret ballot necessarily guarantee a fair election.
Imagine that a referendum election was scheduled in your town. Imagine that the town council required you to attend meetings at which the preferability of a No vote was strongly argued. Imagine that “consultants” noted whose lawns sported Vote Yes signs. Imagine that private conversations on the election were routinely re-ported back to the council. Imagine that if the council thought you would vote Yes, you could be evicted and forced to move out of town. By the time the election occurred, the pool of probable Yes voters would be considerably reduced. The vote might be by secret ballot, but the process would hardly be fair.
This is very like the situation under current labor law. Employers who claim they can’t afford to raise wages often hire high-priced consultants to help them defeat a union election. They schedule mandatory, closed-door, anti-union meetings — sometimes even one-on-one anti-union sessions with supervisors. They may threaten to close the workplace. If that doesn’t work, they resort to firing union activists. Securing redress for these violations of labor law is a cumbersome and expensive process.
Many workers have come to believe that the NLRB is no longer the neutral guarantor of rights and due process it was set up to be, and has become biased in favor of employers. That’s the impetus for EFCA.
This isn’t a new problem. Before 1965, it wasn’t illegal for black people to register to vote in Mississippi; it was just very, very hard. They were required to pass exams on arcane provisions of the state constitution. When a black person turned up at the service counter, the registrar’s office was apt to close. There were delays and procedural hurdles. Blacks who tried to register were subject to intimidation, harassment, even violence. Apologists for the status quo claimed that change would bring fraud and abuse of power.
Instead, change brought the Voting Rights Act. This abolished requirements for literacy tests, constitutional exams and character references. It made registering to vote simpler and more direct. Instead of protest marches, tear gas, and snarling police dogs, we now have elections, most of them by secret ballot. It’s not perfect, but it is progress.
EFCA is the equivalent change for working people. It would allow them to express their preference for or against union representation in a direct and simple way. If EFCA passes, no laws or regulations guaranteeing oversight of unions or requiring good faith in collective bargaining would be repealed. Union members would still vote for union officers or on contract ratification by secret ballot. Stripped of hysterical rhetoric, EFCA seems worth considering.
EFCA has passed the House. The Senate has yet to vote. When it does, I hope Maine’s senators will give EFCA the fair consideration it deserves.
Lisa Feldman works at University College Bangor and is a member of ACSUM-MEA, the union representing clerical workers in the University of Maine System.