Features » May 28, 2009

Battling Over Employee Free Choice

The fate of labor’s top legislative priority is in the Senate’s hands.

By David Moberg

On March 9, supporters of the Employee Free Choice Act carry money bags at a rally in Layfaette Square in Washington, D.C.

Sen. Arlen Specter (D-Pa.), who has proposed making it illegal for union organizers to visit workers’ homes without prior consent, will likely face a progressive primary challenge in the Fall.

When Congress votes on the Employee Free Choice Act, it will decide not only whether workers will be able to organize unions more easily and whether America will build a stronger economy based on shared prosperity. It will also decide how democratic America will be.

The fate of the proposed legislation hinges on a few senators under intense pressure from corporations. But labor leaders remain optimistic that the legislation will pass—most likely with some tweaks.

“We’re definitely in a tough fight,” says Stewart Acuff, assistant to AFL-CIO president John Sweeney. “This is the largest grassroots campaign in labor history. We’re going to play it out as hard and strong as we can.”

The legislation, a top union priority supported by President Obama, would provide legal recognition of a union at a workplace if a majority of workers signed statements of support. Now, even if a huge majority of workers sign union cards, employers can demand that the National Labor Relations Board hold an election, giving the company and anti-union consultants time to bully employees into voting against unionization.

The bill would also stiffen penalties for all-too-common employer violations of labor law—such as firing union supporters—and provide the option of mediation and arbitration of first contracts when employers balk at serious bargaining.

Business groups and their right-wing allies focus on claims the law would deny workers’ right to a secret ballot, which they portray as the hallmark of democracy. But businesses clearly oppose the bill not for any alleged democratic shortcomings but because they oppose unions. In doing so, they oppose freedom of association, a bedrock democratic principle.

Minority rule

Workers can join political or community groups at will, without secret ballots, but can only form unions without a ballot if the boss agrees. Most employers make union elections as much a free and democratic expression of workers’ views as North Korea’s secret ballots.

The congressional process of deciding on the legislation is a little more democratic, but still deeply flawed. A solid majority in the House voted for EFCA in 2007, but while a majority in the Senate would now, supporters need 60 votes for cloture, or ending debate. With the recent defection of Pennsylvania’s Arlen Specter to the Democratic Party (and assuming Al Franken becomes Minnesota’s new senator), Democrats and independent supporters will number 60. That means Dems will in theory have the votes needed to end an inevitable EFCA filibuster.

But in March, Specter, who co-sponsored EFCA in 2007, said he would no longer support cloture on the bill, reiterating this point when he announced his party switch in April. And Sen. Blanche Lincoln (D-Ark.), from the home state of notoriously anti-union Wal-Mart and Tyson Foods, said she would not support EFCA in its current form because it is too “divisive.”

Both senators face re-election next year. Running on the Democratic ticket, even with Obama’s promised support, Specter could face a significant progressive primary challenge. Specter’s switch is more likely to increase the likelihood of a compromise than win EFCA 60 votes. That could leave labor a tough choice between a stale half loaf today or a possible whole loaf in the next Congress.

Since the 40-plus senators now supporting a filibuster disproportionately come from less populated states, a tiny minority is undemocratically blocking expanded democracy for the majority.

In fact, a clear majority of Americans favor EFCA’s provisions, according to surveys by Hart Research. After pollsters described EFCA reforms, 73 percent of Americans surveyed supported it (including 69 percent in right-to-work states). Even when respondents heard the most potent arguments on both sides, strong—albeit smaller—majorities supported EFCA by margins of about 19 percent.

The U.S. Chamber of Commerce and a shadowy network of front groups have kept most businesses—even those who accepted majority sign-up to recognize a union—toeing a hard line against the bill.

But some small business owners around the country have spoken out for EFCA as good for business and the economy. “We need a strong working middle class or my business will suffer,” says Darren Horndash, owner of the 33-store Wisconsin Vision optical chain. He says his unionized employees’ loyal performance helps retain customers.

Corporate opponents claim widespread unionizing will shut down businesses and cost jobs, but a new study by the Economic Policy Institute concludes that “the biggest fear voiced by employer groups regarding unionization—that it will inevitably drive them out of business—has no evidentiary basis.”

And a new Center for Economic and Policy Research study, led by Massachusetts Institute of Technology professor Thomas Kochan, argues that unions are associated with high-performance workplaces yielding 15 to 30 percent “performance premiums” in efficiency, quality, employee engagement and profitability.

Cracks in the monolith?

One group of big companies—partly unionized Costco and staunchly anti-union Whole Foods and Starbucks—has broken with the hard-line Chamber of Commerce. The companies have proposed quicker elections, before which unions and business would both have access to workers. But it opposes majority sign-up and arbitration, and also proposes a new right of employers to initiate union decertification. While unacceptable to unions, the group’s proposal shows cracks in the corporate monolith.

Unions are keeping up the fight for EFCA as proposed, but they acknowledge changes may be needed to win over 60 senators. If Lincoln and Specter can be persuaded to help end a filibuster, they’re confident all other Democrats will as well.

“Taking steps to rebalance the playing field was always going to be tough,” says Change to Win Executive Director Chris Chafe. “But we’re still in a strong position to achieve major labor law reform … It will look a great deal like [EFCA].”

Some changes—such as designing sign-up cards that explicitly give workers the choice of an election or immediate approval of the union or lengthening the time before arbitration can be requested—would not seriously compromise the legislation. But many proposals, including one from Specter that would bar union organizers from visiting workers’ homes without prior consent, would tilt the playing field even more against unions.

Likely proposals to mandate elections within a short time—say, five to 10 days after a union petition—are problematic, even if unions got equal access to workers. “It takes a short time for employers to poison the well,” one organizer explained. Indeed, the fundamental problem is that employer speech in a workplace is inherently coercive, since the boss has power over a worker’s job.

“We are weighing a bunch of options, but the last thing we want to do is make the mistake of the other side and bully or threaten people,” AFL-CIO’s Acuff says. “It doesn’t work well, but it also points out what we’re trying to stop—the bullying and intimidation every day in the workplace.”

A Tough Fight

Unions have maintained a steady push for EFCA, including more than 400 actions during Congress’ spring break. They’ve mobilized non-union supporters and given prominent roles to workers with personal stories to tell, like Colorado electrician Dan Luevano.

In 2005 Luevano and most of his fellow workers at Ries Electric near Denver asked their boss to recognize the Electrical Workers as their union to help resolve problems. The boss called everyone in and threatened to fire them if they voted for a union. Luevano said he would, and the next workday he was fired. Though the National Labor Relations Board reinstated him, his boss isolated him and cut his hours while continuing to violate labor laws by fighting the union.

Luevano eventually left Ries Electric for a union firm. But he has told his story in community forums and interviews, and in congressional hearings and meetings with Colorado senators.

“I wouldn’t want anyone to go through what I went through,” he says. “I’m not a professional lobbyist, just a working person, trying to make life better for my co-workers and our families.” By doing so, Luevano is also trying to make America better—and more democratic. It’s a tough fight.

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• Reader Comments

  The Employee Free Choice Act is neither free nor fair, but it sure is a feel-good name.

  If 50% + 1 employees sign a card supporting a union, that presumes an honest vote and automatically installs the union. Or throws the company into immediate arbitration.

  But if just 1% of those signatures were coerced by fellow workers, or 1% changed their mind and would otherwise vote against a union, such a vote would fail. The unions are not dummies, they know this.

  Not only is this unfair, it may indeed further erode American jobs. Be careful of what you ask for. This will kill American jobs (it cannot help them).

  Better, if just 40% sign a card in support, a vote of all employees should be held. Coercion can come from the company too.

  It’s outrageous when CEOs of public companies are getting $10M pay packages and yet criticize the pay of workers.

  Congress (you know, the jokers taking the campaign contributions) should mandate shareholder approval of executive pay.

  Fair is fair.

  Posted by Jack E Lohman on May 28, 2009 at 9:52 PM

  A small minority of lower skilled workers and possibly a minority of higher skilled workers have even a basic understanding of what the signing the union membership card means.  The average lower skilled worker does not even know that he or she will have to pay dues to be a union member and that the dues are not voluntary; they are automatically deducted from the worker’s pay check.  The average low skilled worker in signing the card which has been explained for the first time by a friendly, highly paid union organizer salesperson only knows what the union organizer tells him or her.  Things like sign here so we can help you get better wages and benefits or fill this out and sign here so we can send you information on our union is what the lower skilled worker is likely to know at the time he or she signs the card. 

  The employer and union campaign contest is the only way that the typical lower skilled worker and many higher skilled workers are going to have a chance at achieving an understanding of the pros and cons of union membership and representation.  The secret ballot election is the only likely way a worker can be assured of expressing his or her preference without fear of retribution from anyone.

  Union leadership and staff are paid by far the majority of these workers’ payroll deductions.  Whether the services of the union leadership and union staff is worth their cost to the worker is a serious question with significant impact on the workers’ take home pay and deciding this issue requires knowledgeable workers.  The whole education and voting process must be transparent.  The employer and union campaigns preceding the election must be fairly and closely supervised by the NLRB and the concluding secret ballot election must be conducted by the NLRB in a way that assures complete secrecy and integrity for the workers. 

  This process is critical as due to the very nature of unionization, a worker once signed up as a member cannot be free to withdraw his or her membership at any time.  Therefore it is mandatory that the worker understand what he or she is committing to before the process is concluded and the worker becomes possibly a long term, involuntary captive of the union membership.

  In this day of intense international competition, if employers are smart enough and principled enough to pay their workers well, provide good working conditions, and help their employees achieve their potential, then why burden society and our economy with the expense of highly paid union leaders and staff whose stated objectives have already been met?  Let unions serve those workers who need a union and who would benefit by a union, but, not effectively create a monopoly for unions to force membership on workers whether or not the workers get commensurate value in return from their highly paid union leadership and staff. 

  Monopolies for large union organizations closely tied to the politics of the executive and legislative branches while lucrative and assuring job security for union leadership who otherwise have substantial difficulty in attracting new “Customers” (members) willing to pay their costs are certain burdens to our freedoms, national competitiveness and standard of living.

  Posted by Craig Milum on May 31, 2009 at 10:28 PM

  Sorry to criticize, but I don’t think Mr. Moberg makes this clear enough:  EFCA would not eliminate NLRB elections.  It would merely create another option—majority sign-up—for workers who wish to be represented by a union.

  Majority sign-up, also called card check, has already been used successfully at many workplaces.  But recognition of a union chosen through card check is not currently binding on employers.  And some employers are less ethical than others.

  In at least one workplace, more than 70% of employees signed union cards, but the union was defeated in the election that followed.  In a great many workplaces where a union won election, the employer stalled or refused to negotiate a contract.

  Employees at any given workplace are likely to know what would work best for them.  EFCA would provide them with options.

  Posted by tinabraxton on Jun 29, 2009 at 7:40 PM

  Likewise on the criticism, but, there is a need to be realistic and honest about these discussions.

  Of the three parties involved in unionization, the employer, the employee, and the union, under EFCA only the union or the employees could ask for an election. The union is not going to because it is easier to get cards signed than go through an election campaign and win a majority of a secret ballot election. The employees are not going to do it mainly because they don’t know it can be done or how to do it plus the union organizers are generally going to discourage it, in addition to the employees are usually a diverse group and they don’t have a practical way to organize themselves, to call meetings and establish their own drive to get sufficient signatures signed to submit a petition to the NLRB for an election. If EFCA passes, realistically, secret ballot elections to organize employees, the hallmark of democracy in the workplace will be history. The only elections will be for decertification because though EFCA allows Card Check to establish a union, EFCA requires a secret ballot election to to decertify a union.

  Knowledgeable proponents of EFCA pretend that under EFCA secret ballot elections will happen if employees prefer them only because it sounds so indefensible to propose the elimination of worker protections and rights in favor of unions.

  It is common knowledge among labor unions that unless at least 70% of the cards are signed that the chances are less than 50% of going through a short employer-union contested election campaign followed by a secret ballot election and winning a majority of the votes cast.

  Imagine an “election” where all that is required is to get people to sign cards confirming their “choice” and only one side has the opportunity to gather votes. There has probably not been a single important election in the history of this country that the actual loser would not have won if he or she had the advantage of being the only one collecting votes and had months to collect the votes.

  EFCA is life support for Big Labor. Big Labor has not been able to breath and function on their own for years because they have not created sufficient value to most workers to voluntarily exchange their money in dues payments for the benefits of union membership. That is why private sector unionization has decreased from around 35% to 8% in the last 50 years. In a free society, government should not force economic choices to satisfy political preferences and the lifestyles of a few.

  Posted by Craig Milum on Jul 9, 2009 at 9:06 PM

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