International Centre for Trade Union Rights

The Employee Free Choice ActAuthor(s): JOHN LOGANSource: International Union Rights, Vol. 14, No. 2, Focus on the Unite/USW internationalinitiative (2007), pp. 12-13Published by: International Centre for Trade Union RightsStable URL: http://www.jstor.org/stable/41936445 .

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REPORT □ US LABOUR LAW REFORM

The Employee Free

Choice Act

I

facing

30-year

political

reform over

to

examines

move a

John

labour

campaign

in

impasse

realities

the

Logan

past

law

the

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examines the

political realities

facing a campaign to move past a

30-year impasse over labour law reform in the US

JOHN LOGAN teaches in the Employment Relations Group, Department of Management at the London School of Economics. He is currently a University Research Fellow at the University of Limerick, Ireland.

On end Employee

26 June, a Republican

Free

the US

Choice

Senate filibuster

Act

voted

(EFCA)

51-48 of the

to

- end a Republican filibuster of the Employee Free Choice Act (EFCA) -

described by one senior unionist as the 'most important' piece of labour legislation since the 1935 National Labor Relations Act (NLRA) - which would strengthen workers' rights to choose a union. The House of Representatives had already passed the bill by a vote of 241-185 on 1 March. According to Senate rules, however, supporters of the legislation need a super-majori- ty of 60 votes to 'invoke cloture' (ie., to end the filibuster). Even if EFCA supporters had won 60 Senate votes, moreover, President Bush had already announced his intention to veto the legis- lation, and they would have been unable to muster the two-thirds support in either the House or Senate necessary to over-ride the veto. Thus, Congress will likely take no further action on organised labour's 'highest legislative priority' until after the 2008 elections.

It would be wrong to consider the Senate vote a defeat for EFCA supporters. Quite the opposite - 12 months ago, few observers would have pre- dicted that by June 2007, EFCA would have won the support of a majority in both Houses of Congress. Supporters of the Bill have always con- sidered their effort part of a three year legislative campaign, the end goal being the enactment of EFCA by summer 2009, assuming, of course, that the Democrats win control of the White House and retain control of the Congress in the November 2008 elections.

Why labour law reform? The last major revision of the NLRA was the

employer-supported Taft-Hartley Act of 1947, while organised labour's last major effort to reform the law was its unsuccessful campaign in 1977-1978, a defeat that has haunted the AFL-CIO for the past three decades. So, after 60 years in which US labour law has remained virtually unchanged, why is reform now essential?

In order to appreciate the need for urgent reform, one must understand the intimidation that American workers are subjected to when they attempt to form a union. The US system of union recognition is the most cumbersome in the developed world, and it provides the weakest protections for workers' right to choose a union. Employer intimidation is endemic, and there are now about 60 million Americans who want a union but can't get one, according to the eminent Harvard economist, Richard Freeman. During campaigns, 30 percent of employers fire union supporters, 49 percent threaten employees with job losses in the event of a union victory, 82 per- cent hire highly paid 'union avoidance' consul- tants and lawyers, and 91 percent force employ-

ees to attend one-on-one anti-union meetings with their supervisors. Indeed, so disillusioned are unions with the current system that approxi- mately eighty percent of new union members do not join through the traditional NLRB election process. The purpose of EFCA is to eliminate the fear that is endemic when workers attempt to form a union under the NLRA system.

What would EFCA do? EFCA has three main provisions. Illegal prac-

tices by anti-union employers are widespread under the NLRA, so the bill imposes harsher penalties on employers who discriminate against employees when they attempt to form a union or negotiate a first contract. But EFCA goes further than imposing tougher sanctions on illegal employer practices. The fundamental problem with the NLRA system is not only the number of law-breakers, but also the deficient provisions of the law that enable employers to intimidate employees and subvert their free choice without violating the law.

Second, EFCA tackles fundamental problems in the first contract process. Employer opposition does not end when employees form a union, and one third of new unions are unable to negotiate a first contract within 12 months of recognition. Thus, even when they lose an election, anti-union employers get a second opportunity to thwart employee free choice. EFCA provides for neutral arbitration of disputes when unions fail to negoti- ate a first contract within 90 days of bargaining and 30 days of mediation. Thus, it ensures that employees who chose a union get a first contract and removes from employers the argument that unionisation is futile or even potentially detri- mental to employees' interests - a persistent theme in anti-union campaigns.

Third, and most controversially, EFCA allows employees to form a union when over 50 percent sign union membership cards.The ultimate aim of labour law reform is to make organising less per- ilous for employees, and this cannot be achieved only by imposing harsher penalties on employers who violate the law. Under the current system of sham workplace elections, in which employers exploit their exclusive control at the workplace, high paid 'union avoidance' consultants will always devise new methods of undermining employee free choice.

Why, then, is organised labour pushing for these three reforms? Other reforms - outlawing permanent striker replacements or repealing the law's 'Right-to-Work' provision - might prove unpopular with non-unionists and, even if enact- ed, would assist little with organised labour's fun- damental problem - haemorrhaging union density. The most effective way to protect the right to

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organise and reverse decline is to decrease the obstacles unions face in gaining recognition in ways that will make unionisation less perilous and more beneficial for employees. Card check recognition, first contract arbitration and stiffer penalties for employer interference would achieve that by defusing the hostility with which most employers confront organising campaigns.

Employer opposition to EFCA If political support for EFCA grows after the

2008 elections, it's likely that employer groups will intensify their opposition and seek to insti- gate the 'mother of all wars' over labour law reform, which has been a no compromise issue for the business community for three decades. Employers waged a 'one-sided class war' against the Labor Law Reform Act of 1977-1978, and mobilised vigorously against the striker replace- ment campaign and the recommendations of the blue-ribbon Dunlop Commission during the Clinton Administration. This time their campaign could be even more intense. In the lead up to the Senate vote, the anti-EFCA Coalition for a Democratic Workplace launched a 'media blitz' in the states of 'swing' Senators, while another anti- union group, the Center for Union Facts, spent $750,000 dollars in the final seven days on ads in the New York Times, USA Today and commercials on CNN and Fox News.

EFCA opponents have seized upon its 'card check' provision to label the measure an unprece- dented and anti-democratic power grab by 'big labour' that will expose employees to coercion by unscrupulous union organisers. But contrary to their vitriolic rhetoric, card check recognition is neither unprecedented nor anti-democratic. A sys- tem of card check recognition has operated suc- cessfully in the United Kingdom since the enact- ment of the Employment Relations Act in 2000. Card check recognition for unions also operates without problem at the federal level in Canada and in several Canadian provinces. As a result of these card check laws, employer coercion during organising campaign is much less of a problem in the UK and Canada than it is in the US.

Nor is it only other countries that consider card check recognition good public policy. Many US lawmakers believe this, too, and card check is the norm for large groups of workers who are not covered by the National Labor Relations Act. Workers who have formed unions under card check laws include state and local public sector workers in Alaska, California, Illinois, New Jersey, New Mexico, New York, and Ohio, and charter school, Indian gaming, public sector higher edu- cation, and trial court employees in several states. And voluntary card check agreements are increas- ingly viewed as 'best practice' in those sectors of

the private workforce in which unions and man- agement have developed cooperative relation- ships. Cingular Wireless, Kaiser Permanente and Allina health care, to name but three, recognise the benefits of card check recognition and coop- erative relations.

So why are American employers so implacably opposed to card check recognition? One employ- er gave the game away at a recent meeting of the National Association of Wholesalers-Distributors. The basic problem, he explained, was that under a card check system, employers have 'no chance to retaliate'. And American employers currently do plenty of retaliating. In 2005, 31,000 workers received back pay because of illegal employer dis- crimination for activities protected under the National Labor Relations Act. Nor is there any great mystery as to why American employers vio- late the law with such regularity: under the exist- ing system crime pays great dividends and employers consider the law's paltry sanctions a small price to pay to prevent their employees from forming a union.

Timetable for reform So what are the prospects for the enactment of

EFCA? Past experience suggests that the window of opportunity for labour law reform, if it does materialise after the 2008 elections, will likely be brief, and thus action will need to be swift. Indeed, the timing of EFCA might prove just as critical as its substantive content. Previous cam- paigns have demonstrated that delay simply affords organised labour's opponents a greater opportunity to mobilise against any planned legis- lation. If the Democrats maintain control of the House, pick up several seats in the Senate, and win the White House in 2008, organised labour would immediately push for the reintroduction of EFCA and work hard for its enactment by sum- mer 2009, more than three decades after the last major attempt to revise the NLRA. But EFCA sup- porters must also recruit allies, and frame the debate in broad economic terms, stressing that unions and collective bargaining - which greatly expand access to employer healthcare and pen- sion schemes - are critical.

But even all that might not be enough. Previous campaigns have demonstrated that even if its Bill is good enough, its arguments robust enough, and its support deep enough, organised labour will face an uphill struggle to gain 60 Senate votes. Just as they did on 26 June, the business commu- nity and its Republican allies in the Senate may be able to employ the filibuster one more time to undermine this effort to protect workers' right to choose a union. And if unions fail to gain reform on this occasion, their task will likely be even more difficult the next time around.

In order to

appreciate the need for urgent reform, one must understand the intimidation that American workers are subjected to when they attempt to form a

Page 13 Volume 14 Issue 2 2007 INTERNATIONAL union rights

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