Division of Labor Action: Education & Training

The Employee Free Choice Act: strengthening union organizing rights

By Joe Twarog
Associate Director, Labor Education & Training

In the last session of Congress, a bill was introduced called the Employee Free Choice Act (S 842 and HR 1696). It was co-sponsored by Sens. Edward Kennedy (D-Mass.) and Arlen Specter (R-Penn..) and Reps. George Miller (D-Calif.) and Peter King (R-N.Y.). It has further bipartisan backing with 207 representatives and 41 senators signing onto the bill.

This bill strengthens union organizing rights and also helps to restore some of the imbalance that resulted from anti-union appointments during the current administration. The U.S. culture has strayed very far from the initial intent of the National Labor Relations Act (also known as the Wagner Act), passed in 1935. Sen. Robert Wagner stated that, “The struggle for a voice in industry through the process of collective bargaining is at the heart of the struggle for the preservation of political as well as economic democracy in America.”

In fact, it was the express policy of the United States to encourage the practice of collective bargaining. In addition to legally recognizing and establishing workers#&8217; right to form and join a union and to engage in the process of collective bargaining, the NLRA created an atmosphere conducive to organizing. The NLRA states, in part:

It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

This proactive policy has been undermined, weakened and diluted over the years to such an extent that it is no longer recognizable. This depressing history includes: passage of anti-union legislation beginning with the Taft-Hartley Act of 1947; anti-worker decisions/ policies emanating from the politicized NLRB and a radicalized Supreme Court; a president who proudly broke a union and another who rammed through NAFTA; and a rampant industry of union-busting consultants.

All of this has had the cumulative effect of making it increasingly difficult to organize a union in the workplace. Employees wanting to form a union are threatened as employers use all tactics available, and then some, to delay, harass and intimidate workers to vote and act against their own interests. Achieving a free and fair union election in such a climate is virtually impossible.

Some 57 million U.S. workers indicate that they would join a union if they could, according to a survey by Peter D. Hart Research Associates. But, according to the Communications Workers of America:

• Each year, more than 20,000 workers are illegally fired or discriminated against for exercising their labor rights.
• At least one out of every four organizing efforts results in an employer firing a worker for supporting a union.
• 75 percent of employers hire union busting “consultants” to help defeat organizing drives.
• 92 percent of employers compel their workforce to attend “captive audience” meetings to hear anti-union propaganda.
• In one-third of all union election victories, workers still do not have a collective bargaining agreement two years after the election.

The Employee Free Choice Act seeks to reverse and repair much of the damage done to worker’s rights over the years. Its key components are:

• Card check. If a majority of employees in a workplace sign union cards, they have formed a union.
• First contract mediation and arbitration. An important provision, because currently, even if workers win a union election, all too often they remain without a contract after a year of bargaining because employers often stall such efforts in an attempt to break the union.
• Stiffer penalties for labor law violations. Currently violations usually result in a slap on the wrist. And in the unusual case when an employer has a monetary penalty, they treat it simply as another cost of doing business.

1. Certification on the basis of signed authorizations. Provides for certification of a union as the bargaining representative if the National Labor Relations Board finds that a majority of employees in an appropriate unit has signed authorizations designating the union as its bargaining representative. Requires the board to develop model authorization language and procedures for establishing the authenticity of signed authorizations.
2. First-contract mediation and arbitration. Provides that if an employer and a union are engaged in bargaining for their first contract and are unable to reach agreement within 90 days, either party may refer the dispute to the Federal Mediation and Conciliation Service (FMCS) for mediation. If the FMCS has been unable to bring the parties to agreement after 30 days of mediation the dispute will be referred to arbitration and the results of the arbitration shall be binding on the parties for two years. Time limits may be extended by mutual agreement of the parties.
3. Stronger penalties for violations while employees are attempting to organize or obtain a first contract. Makes the following new provisions applicable to violations of the National Labor Relations Act committed by employers against employees during any period while employees are attempting to organize a union or negotiate a first contract with the employer:
• Mandatory applications for injunctions: Provides that just as the NLRB is required to seek a federal court injunction against a union whenever there is reasonable cause to believe that the union has violated the secondary boycott prohibitions in the act, the NLRB must seek a federal court injunction against an employer whenever there is reasonable cause to believe the employer has discharged or discriminated against employees, threatened to discharge or discriminate against employees or engaged in conduct that significantly interferes with employee rights during an organizing or first contract drive. Authorizes the courts to grant temporary restraining orders or other appropriate injunctive relief.
• Treble back pay: Increases to three times back pay the amount an employer is required to pay when an employee is discharged or discriminated against during an organizing campaign or first contract drive.
• Civil penalties: Provides for civil fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated employees#&8217; rights during an organizing campaign or first contract drive.

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