Pivotal legislation that would greatly strengthen workers’ rights to organize in the United States was presented to Congress on March 10 for debate and action. At a Capitol Hill news conference, Senator Tom Harkin (D-Iowa) and Representative George Miller (D-Calif.) announced the introduction of the bill, S.560 and H.R.1409.
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The Employee Free Choice Act is backed by the entire U.S. labor movement as an urgent act needed to counter decades of union-busting by corporations and the ruling class as a whole. Given the enormous pressure that big business is applying to members of Congress to defeat the EFCA, especially those from southern and less-populous states, unions have been intensifying their last-minute efforts.
The EFCA has three key components: 1.) A streamlined process for union recognition through a majority sign-up of workers; 2.) An expedited deadline of 120 days to negotiate a contract before binding arbitration is implemented to achieve an agreement; and 3.) The strengthening of penalties against employers who abuse workers’ rights in a union drive. It also requires the NLRB to seek federal court injunctive relief when worker’s rights are violated.
If the EFCA becomes law, it will be a huge boost in the ability of unions to assist non-union workers to organize their workplace. It would allow a simple majority of workers at a workplace—50 percent plus one—to sign a card to obtain official union recognition. Once that is achieved, the workers would be legally entitled to be represented by a labor union, which would then negotiate a contract with the employer, on behalf of the workers.
The card-signing process, historically known as “card check,” is also called “majority sign-up.” Majority sign-up is a streamlined and highly-preferred alternative to the traditional secret-ballot election that is conducted by the National Labor Relations Board, after it notifies a company that a majority of the workers are requesting union representation.
In the United States, a secret-ballot union-recognition election is far from being “free and democratic.” Because of the captive nature of the workplace and pressure by companies, it is an intimidating and grueling process for workers. Many union drives end in defeat due to pressure on the workers, even though a majority of the workers start out wanting to join a union.
A quick look at the union-recognition election, which the NLRB oversees, says it all. First, it takes months for the NLRB to schedule an election in the particular worksite, after enough workers show interest. During that time, the company is able to launch a vicious campaign of intimidation, threats, firings and layoffs, to pressure the workers to vote against the union.
According to the AFL-CIO, a study by Dr. Karen Bronfenbrenner shows that once a union drive is on, 92 percent of employers hold forced attendance meetings to pressure the workers to vote no. Though prohibited by federal law, half of the corporations where there is a union drive threaten to close down their workplace if the workers vote to bring in a union. Twenty-five percent of employers fire one or more workers during a union drive.
Bronfenbrenner in “The Silent War: The Assault on Workers’ Freedom to Choose a Union and Bargain Collectively in the United States,” writes, “Fifty-five percent of private-sector employers force workers to watch anti-union videos during NLRB representation election campaigns. Seventy percent send anti-union letters to workers’ homes; an average of 6.5 such letters are sent to each worker’s home by these employers during a typical campaign—up from 4.5 in the mid-1980s.”
With the EFCA, the organizing process is streamlined and made far more democratic. Having a simple majority of workers sign a card, minimizes threats and intimidation by foregoing the lengthy election process.
The next hurdle: a first-time contract
Under current practice, workers who survive the test of fire to win union recognition then have to struggle to successfully negotiate a contract with their employer.
Studying 22,000 union-organizing drives from 1999 to 2005, MIT professor Thomas A. Kochan and MIT student John Paul Ferguson showed that “Only one in five cases that filed an election petition ultimately reached a first contract. This is despite all the cases already having shown substantial and likely majority support for representation.”
Union-busting consultation firms advise employers to stall during the negotiations. They suggest that companies schedule few negotiating sessions and drag out the discussion. The firms also recommend that employers agree to nothing, not even minimal provisions of a bargaining agreement. Among these “union-avoidance” companies which oppose the EFCA are the Council on a Union Free Environment, Associated Builders and Contractors and the Coalition for a Democratic Workplace.
Currently, after 12 months if there is no contract, the NLRB allows for a “decertification petition” signed by anti-union workers—as few as 30percent in the bargaining unit—and a new election that can lead to reversal of union recognition. Often, workers become demoralized when they see no positive outcome in months or years of negotiations. Pro-union workers may be laid off, further weakening the resolve for a union.
As law, the EFCA would provide for arbitration if a contract is not achieved within 120 days—90 days for labor-management negotiations followed by federal mediation for 30 days. It would then mandate mandate a two-year minimum contract.
The third major provision of the act would triple back-pay damages if an employer is found to have fired employees for union activity. It would also require the NLRB to file a federal court injunction against an employer if it finds reasonable evidence of illegal company action against a union drive. Fines of up to $20,000 for a company’s violations are in the EFCA. Presently, there are no civil fines.
It is no wonder that corporate America is vehemently opposed to the EFCA. Littler Mendelson, one of the largest anti-union law firms, admits, “The EFCA, if passed, would dramatically change the legal landscape and shift the balance of power in organizing campaigns and negotiations for first contracts in favor of unions.
“Unions are fully aware that they will be more successful in increasing their numbers through the card check process, and the mandatory arbitration process will protect them from failing to gain a first contract. That is why unions see the EFCA as the most important legislation that has been before Congress in years.”
While the bill was filibustered and failed in the Senate in 2007, this year the EFCA stands a better chance of passing both houses. The AFL-CIO and Change to Win unions are mobilizing members and non-union workers to call their representatives and urge passage.
The EFCA would be a substantial victory and represents the potential of a broad expansion of union rights. It comes as a direct response to the capitalist economic crisis. It should be welcomed as an opportunity to intensify the struggles of working people against the ruling class.
To find out how you can weigh in favor of the EFCA, visit: http://blog.aflcio.org/
