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Why Congress should pass the Employee Free Choice Act.

By Jake Blumgart, Campus Progress
February 26, 2009

Workers in Pittsburgh rally for their right to unionize. (AP Photo/Keith Srakocic)

The Employee Free Choice Act (EFCA) is the subject of one of the most contentious debates in Washington right now. The act would strengthen workers’ rights to organize a union, which would then represent their interests in the workplace. At first glance, this issue might not appear relevant to the average, non-unionized American. But consider this: The only era in which the United States has enjoyed broadly shared prosperity was between the late 1930s and the early 1960s, the heyday of the American labor movement. It can be argued that unions have pulled more Americans into the middle-class than laissez-faire economics ever have. Now, at a time when the country’s economic policies aren’t working out well for most Americans—except, of course, the privileged few—unions are a must. But unions have been in decline for decades. In fact, a little less than 13 percent of U.S. workers are unionized, compared to one-third in the 1950s. And that’s exactly why the EFCA is such an important bill.

What is it?

The EFCA seeks to halt and reverse the decline of unions in the United States. It is an amendment to the National Labor Relations Act (NLRA) of 1935, which officially sanctioned the right of workers to organize labor unions, bargain collectively, and strike. The NLRA has been weakened over the years. For example, the Taft-Hartley Act of 1947 intended to undermine unions by outlawing or restricting a number of their most effective tactics, like mass picketing, sit-down strikes. Taft-Hartley also forced the labor movement to purge its leadership of communists and other political radicals, many of whom had been the most militant members of their respective unions. Other issues like the de-industrialization of the American economy, the harsh anti-union tactics employed by business interests, and the last few decades of free-market fundamentalism have taken their toll too. Today’s EFCA seeks to redress the balance of power by reaffirming and strengthening worker’s rights in three important ways.

1) Stiffening the penalties for companies that violate employee rights through duress and abusive power dynamics. Too often when workers try to organize, management will attempt to illegally influence the process through threats and mandatory anti-union propaganda meetings. According to one study conducted by Cornell University, a shocking one-fourth of all employers illegally fire at least one worker during an organizing campaign. The penalties for such interference are minimal; an employer might be required to post a sign in the workplace apologizing for interfering. Most employers consider such mild punitive measures a cost of doing business. The Employee Free Choice Act would hold employers accountable for such unscrupulous behavior by fining $20,000 per violation during an organizing campaign.

2) Allowing a union to be recognized through majority sign-up. Also known as card check, this provision would allow a union to become certified if 51 percent of the employees sign authorization forms. Majority sign-up would give workers the option of bypassing a bruising election process, which management usually dominates through coercion and pervasive anti-union propaganda.

3) Provide simplified access to federal mediation if management bargains with employees in bad faith. Under today’s labor laws, if union organizers are able to win a successful election, management can still draw out contact negotiations indefinitely. This is known as bargaining in bad faith, and such spiteful negotiations can drag on for years, slowly sapping the union’s strength. EFCA would undercut such ignoble tactics by referring the dispute to the federal government. The Federal Mediation and Conciliation Service would then arbitrate the negotiations free of charge, effectively forcing the two sides to come to an agreement.

Why is it good for employment?

Today’s unemployment rate is at 7.6 percent (but if underemployment and forced part-time hours are factored in, the number is closer to 14 percent), and the Federal Reserve predicts it will remain high until at least 2011. Fresh rounds of layoffs in companies like Home Depot, Caterpillar, and Spring haunt the news cycle. The working and middle-classes have borne the brunt of the crash—and to make matters worse, America’s reeling workers no longer have the easy access to self-empowerment that they used to.

Even before the recession was officially declared, real wages had been in decline for decades, despite increasing corporate profits, largely because such a small percentage of the American workforce is unionized (only 7.6 percent of privately employed workers are unionized). In fact, union rates have been in decline for decades as new laws made unionization harder and de-industrialization devastated once powerful sectors of the American working-class. Subsequently, workers found it harder to make their voices heard.

The Reagan Revolution of the ’80s accelerated the decline of the labor movement. Reagan did not attempt to work with the striking workers; instead he declared war on them. Reagan began by sacking 13,000 striking air traffic controllers and crushing their union. He later went on to appoint a chairman to the NLRB who claimed that unions caused the “destruction of individual freedom.” Such policies found a willing successor under George H.W. Bush (although the neo-liberal economics of the Clinton administration didn’t provide much of a reprieve). Under the Bush Administration, union-busting and worker intimidation have reached staggering heights. Currently, 25 percent of employers illegally fire workers who attempt to organize their workplace. In 71 percent of unionization drives at manufacturing companies alone, management threatened to close the workplace if workers voted for unionization. These conditions are enabled by the fact that American labor protections provide little defense against employers emboldened by soft penalties—which many companies calculate into “the cost of doing business”—against worker abuse. This is bad for the workers, bad for the economy, and bad for the majority of Americans.

A strong labor movement is an essential element of a thriving middle-class because union members generally have more economic mobility than their non-union peers. Unions ensure employee rights, presenting a united front that represents the best interests of all workers, including people of color and women. On average, workers in unions earn $200 more per week than their nonunion peers. Unionized young people earn 12.4 percent more than their non-organized counterparts, and are more likely to have benefits, and in turn today’s young people express a “great deal of confidence” in unions. Unionized employees in general are more likely to have health care (78 to 49 percent), pensions (81 to 47 percent), and disability benefits (60 to 35 percent). In short, a strong middle-class is necessary for a revitalized economy, which has lead many influential figures to argue that the EFCA is a necessary aspect of our economic recovery.


Passing EFCA: Getting to 60 Votes

When the Employee Free Choice act was first up for consideration in the spring of 2007, it passed by a wide margin in the House of Representatives (241-185), but didn’t make it past the Senate. Now with Democrats holding 59 seats in the Senate, EFCA is likely to get a more sympathetic look. With 60 votes, the bill will have immunity from a filibuster. While most Republicans are vehemently anti-union, a few moderate Republicans in the Senate could be swayed to vote for EFCA. In 2007, Arlen Specter, the senior Republican senator from Pennsylvania, voted for the bill. But support for EFCA isn’t guaranteed among all Democrats; several moderate “Blue Dog” Democratic senators who have expressed doubt about supporting the bill, including Sen. Blanche Lincoln (AR). There are a number of senators who have expressed tepid support for the bill. With public pressure, they may be persuaded to vote for the bill.


Common Myths and Myth-conceptions

Q: Wouldn’t getting rid of elections lead to an undemocratic work environment, where union bullies force workers to vote for them?

A: First, the Employee Free Choice Act does not ban workplace elections. It simply gives workers a choice: They can organize a union through an election or through majority sign up. While EFCA opponents claim that card check would limit workplace democracy, they elide the fact that management’s role in workplace elections bears a closer resemblance Fidel Castro’s decidedly one-sided elections in Cuba than any American electoral process. Intimidation, harassment and complete control over information accessible in the workplace makes secret elections held under current laws a rather one-sided affair. According to a recent article, “in 2007 nearly 30,000 workers suffered illegal employer retaliation for exercising their rights at work … Even a survey by the anti-union HR Policy Associates turned up only 42 clear cases of union misconduct in signing union authorization cards in the more than 70 years since the National Labor Relations Act was passed in 1935”.

Q: In these tough economic times, won’t more unions do harm, not good, by forcing companies over seas in search of cheaper labor?

A: Most jobs currently available in the U.S. are not manufacturing jobs that can be easily shipped overseas. In fact, of the approximately 200 million jobs in the U.S., less than 15 million are manufacturing jobs. The majority of jobs are in the service industries: nurses, retail workers, waiters, and other employers in the hospitality industry, etc. These jobs, by their very nature, have to remain in the communities that they service. Unfortunately, the service sector of the economy is notoriously difficult to organize under current laws. EFCA would give these employees the opportunity to have their voices heard in the workplace, a right that has been denied for far too long.