What Is The Employee Free Choice Act?

What is the Employee Free Choice Act? Conservatives would have us believe that is the end of democracy as we know it -- the first peals of the death knell of the secret ballot. Along with the U. S. Chamber of Commerce, they set themselves up as the champions of working people under the thumb of so-called "union bosses." According to the entry in Wikipedia (which happens to be accurate):

Under current U.S. labor law, the National Labor Relations Board will certify a union as the exclusive representative of bargaining unit employees by card check process or secret ballot election, which is held if more than 30% of employees in a bargaining unit sign statements asking for representation by a union. If enacted, EFCA would require the NLRB to certify a bargaining representative without directing an election if a majority of the bargaining unit employees signed cards, the card check process.

Note: Under current labor law, a secret ballot election is held only when employers request. If passed, EFCA will also allow employees to request a secret ballot election.

But the rub, or at least the rub as the right wing would have it, comes with the card check process, which is not held in secret:

Card check, commonly known as majority sign-up, is a method for employees to organize into a labor union when a majority of employees in a bargaining unit sign authorization forms, or "cards," stating they wish to be represented by the union. Since the National Labor Relations Act (NLRA) became law in 1935, majority sign-up has been an alternative for workers to the National Labor Relations Board's (NLRB) election process and has been approved and endorsed by the NLRB, Congress and the U.S. Supreme Court. Today, most workers organize their union through a majority sign-up. It has gained increasing support as evidence has mounted of anti-union employers controlling and manipulating NLRB elections.

In other words, card checking is a long-established process upheld as constitutional by the Supreme Court. However, as things stand, employers do not have to recognize the results of a card check and can instead request a secret ballot election. Their claim is that only with a secret ballot can workers indicate their true position, which presumably is against forming a union.

As you might think, there's more to this than meets the eye. I am routinely skeptical any time the U.S. Chamber of Commerce and big business claim to have workers' best interests at heart, simply because I can't think of a single instance in which this was true. And it turns out that the intimidation of union organizers is so routine that the Human Rights watch has concluded that

A culture of near-impunity has taken shape in much of U.S. labor law and practice. Any employer intent on resisting workers' self-organization can drag out legal proceedings for years, fearing little more than a requirement to post a written notice in the workplace promising not to repeat unlawful conduct. Many employers have come to view remedies like back pay for workers fired because of union activity as a routine cost of doing business—well worth it to get rid of organizing leaders and derail workers' organizing efforts."

(The complete report is here.)

Moreover, businesses routinely force employees to attend anti-union meetings; the firing of employees who dare attempt to organize a union has also become routine. So while big business raises the spectre of union organizers intimidating workers into signing cards, it's really they who are the intimidators. What's more, it's working: Union membership is at its lowest level in history. Not uncoincidentally, the size of the middle class has shrunk relentlessly at the same time.

One way of looking at this is to compare card checking to voter registration. We register to vote publicly, and in some states voters are even required to declare a party affiliation. But this doesn't affect the secret ballot at all, where you can vote for anyone you want to regardless of party. The card check is no different: A worker signs a card indicating that he or she wants union representation. Who the representatives are remains subject to a secret ballot.

President Obama, an original sponsor of the bill in the Senate, puts it this way:

I support this bill because in order to restore a sense of shared prosperity and security, we need to help working Americans exercise their right to organize under a fair and free process and bargain for their fair share of the wealth our country creates. The current process for organizing a workplace denies too many workers the ability to do so. The Employee Free Choice Act offers to make binding an alternative process under which a majority of employees can sign up to join a union. Currently, employers can choose to accept—but are not bound by law to accept—the signed decision of a majority of workers. That choice should be left up to workers and workers alone.

Aero Mechanic, the excellent monthly newsletter of the International Association of Machinists Lodge 751 here in the Puget Sound Area, has published a guide to the Employee Free Choice Act. I'm reproducing it here:

Big business is determined to kill the Employee Free Choice Act (EFCA), which is labor’s top priority at the federal level. “This will be Armageddon,” Randel Johnson, the Chamber’s vice president for labor policy told the New York Times in November. The Chamber’s hugely funded anti-union ad campaign has left millions of Americans confused about what EFCA is and why it’s so badly needed. We want to provide facts to help you set the record straight the next time a friend asks, “What’s this about unions trying to take away the secret ballot?”

CLAIM: EFCA will take away workers’ right to a secret ballot election.

TRUTH: EFCA protects the right to a secret ballot union recognition election. Any group of workers can still opt for a secret ballot election under EFCA using the same process currently in place. EFCA provides workers the option of forming a union by majority sign up (50% plus one) – currently allowed under federal law, but almost never honored by employers who demand an election in order to gain months to use fear tactics, threats & even firings to persuade workers to vote against unions. 

CLAIM: EFCA isn’t needed; federal and state laws already protect workers’ rights.

TRUTH: In the early decades of the 1935 National Labor Relations Board Act, the law worked the way it was intended. Workers organized unions and the result created America’s middle class. Employers routinely recognized majority sign up until the 1960’s. Since then, employers regularly demand an election to intimidate and persuade workers through fear tactics to vote against a Union.

CK Note: The "it's not needed" argument is a favorite right-wing strategem and one that always amuses me. If it's really not needed, then why get so worked up about it?

CLAIM: Unions will pressure work-ers to sign cards for union representation.

TRUTH: It’s employers, not unions, that have the coercive power to intimidate, fire and demote workers or threaten to close up shop.

CLAIM: Arbitration, in the event that first contract talks are stalled for 120 days, gives unions no incentive to bargain.

TRUTH: Arbitration cuts both ways. However, the possibility of arbitration is important because so many employers refuse to bargain in good faith to reach a first contract agreement. In effect, employers can negate a successful union representation election simply by refusing to bargaining in good faith. EFCA would ensure that newly organized workers get a contract. 

Set the record straight when others are confused by the misleading ads that big business will spend millions on to try to defeat this important bill...

Make no mistake about: Passing EFCA is not only an important step for unions and employees who want to unionize, it's an important step for anyone with a job. Even if you are not in a union, the benefits you have -- annual raises, sick leave, workplace safety requirements, paid vacation, health insurance, pensions, 401-K's -- are all the result of the growth of unions after World War II. As these became common features of union contracts, they moved by osmosis into white collar and non-union workplaces looking to forestall unionization. And it's no accident that as union membership has declined, non-union employees find themselves paying more and more for health insurance...

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