Employee Free Choice Act Promotes Democracy


The Employee Free Choice Act, a bill that would remove harsh barriers to joining labor unions, was introduced in Congress, Tuesday March 10th. Supporters of the bill say there are two simple but vital reasons for passing the bill into law: improve democratic rights and boost the economy. PoliticalAffairs.net begins here a regular series of articles on the Employee Free Choice Act to help readers better understand its provisions and its benefits.

Democracy in the workplace

When Wal-Mart CEO Lee Scott was asked recently about Employee Free Choice he responded, 'We like driving the car and we're not going to give the steering wheel to anybody but us.'

Scott shares this sentiment with many corporate CEOs and well-rewarded executives. It is driving a mammoth $200 million campaign funded by his company and other corporate front groups to prevent reforms enshrined in the Employee Free Choice Act (EFCA) that will remove barriers to workers organizing unions.

Corporate lobbyists have invaded Washington, doling out wads of cash and putting pressure on Congress to block EFCA.

They are fighting so hard on this because EFCA would reform labor law in three ways: 1) shift choice of how unions are certified from employers to workers; 2) impose real penalties on employers who violate labor laws by harassing or firing pro-union workers; 3) eliminate expensive taxpayer-funded red tape that slows the process of unionization.

'Secret ballot' myth

Let's look closely at each reform. Many in the right-wing media have misleadingly claimed and in many cases outright lied about the first provision. From CNN's Lou Dobbs to Fox News' Glenn Beck, commentators have insisted that EFCA would eliminate the secret ballot process in certifying a union, a process that is a 'sacred institution' some have sanctimoniously added.

This point has caught on. Many congressional Republicans have picked it up and used it as their excuse in opposing EFCA.

That argument is flat out wrong. Labor law currently allows two methods of certifying unions: majority sign-up (also known as card check) and the secret ballot. The key difference is that now employers, not workers get to choose which method is adopted. This must be what Wal-Mart CEO Scott means by who gets to 'drive the car.'

EFCA would give the choice of how to certify their union to workers – after all it is their organization, not the employer's. Media pundits and members of Congress who are confused on this issue can read the actual bill by clicking here.

Wal-Mart boss Lee Scott would likely get angry if someone else got to determine how he joined any organization. So why does he and other CEOs have so much power to determine which organizations workers are members of?

Choice about how and which organizations workers join is a fundamental right in a democratic society.

State of war

The second reform in EFCA would impose real penalties on employers who violate the law. Right now, something like 30 percent of workers who advocate for a union in their workplace are fired – illegally. More than 90 percent of workers are forced to attend mandatory 'captive audience' meetings created by anti-union consultants and lawyers to discourage unionization and to level threats about what will happen if workers vote to join a union.

According to a former anti-union consultant, employers view the unionization process as a 'state of war' in which any tactic or maneuver – illegal or not – is justified.

According to one lawyer familiar with labor law and the actual practice of unionization interviewed for this story, employers never face real penalties for their actions. At most the National Labor Relations Board (NLRB), the federal agency that oversees union elections, might force the employer to post a statement alerting workers about their rights. Financial penalties are even more rare and can be delayed for many years and reduced in size that they are usually meaningless.

This fact prompted Human Rights Watch (HRW) to report in January that '[s]anctions for illegal conduct are too feeble to adequately discourage employer law breaking' or 'sufficiently disuasive to deter violations.' HRW added that the 'Employee Free Choice Act ... would remedy many of these deficiencies and create a more level playing field for US workers.'

Avoiding punishment for violating federal law might be up Wal-Mart CEO Scott's alley, but just imagine what would happen to any ordinary person who violated federal laws designed to protect an internationally recognized as a fundamental human right.

Equally enforcing the law and punishing those who violate it is an essential ingredient of any democratic society.

Dragging their feet

Current federal law allows employers to manipulate and delay the NLRB election and arbitration processes. After employers order workers to use a ballot process to certify the union, they typically have more than six weeks before the election takes place. During this time period, workers are treated to threats about closing the plant, some workers are fired, and the workers are almost always ordered to attend anti-union meetings.

In those tense weeks leading up to the election, employers use every means – illegal or not – to influence the outcome of the election. So much for the sanctity of the 'secret ballot.'

Even if workers weather this perfect storm of threats and harassment, the certification election is only the first step. The next step opens the negotiations for the first contract.

Current federal law requires that a first contract be inked within a year or the union must be re-certified. There are no enforced measures that make employers bargain in good faith, so they often delay the process, hoping that workers, still under pressure to oppose the union, will simply give up before a first contract is signed.

Labor law does provide for both sides in the negotiations to file grievances with the NLRB if they suspect the other side has violated the law. But as one can guess, these are more often enforced against workers. Employers are rarely ordered to actually make restitution for breaking the law.

Only public pressure can force employers to accept an outside mediator who can bring the two sides together and convince them to accept a compromise contract. Take the case of Smithfield Foods in Tar Heel, North Carolina, for example. Only after 12 years of struggle against the company's recriminations against the workers, firings and harassment, along with a nationwide campaign by the United Food and Commercial Workers union that included a boycott, did Smithfield Foods finally agree to recognize the union that the workers had designated as their bargaining unit.

EFCA would reform labor law in this area, again by creating real penalties for breaking the law, but also by setting a shorter time limit for first-contract negotiations before an appointed mediator can be brought in to settle the contract differences.

This reform is crucial for two reasons: it limits how much employers can game the system and draw out a process at taxpayer expense that allows them to avoid recognizing the union the workers have voted for; it also ensures that workers have their issues addressed in a contract with their employer.

Wal-Mart boss Scott hates the idea of being contractually obligated to workers. He wants to 'drive the car.' The plain fact is, however, that he would NEVER work as Wal-Mart CEO without a contract that guaranteed his mammoth salary, fat stock options and retirement and health benefits. In fact, he – and any top executive –  would be insulted if asked to work without one.

Members of Congress also have a work contract of two or six years that pays around $175,000 annually and provides excellent health care coverage and pensions.

Why can't ordinary working men and women have a contract in their workplace as a matter of course? Being able to bargain effectively for contractually guaranteed wages, benefits and working conditions improves democracy in our country and in its workplaces.

Next time, we'll look at economic benefits of unionization.