The Employee Free Choice Act (EFCA) is the most significant
federal legislative proposal in nearly thirty years concerning the freedom
of Amer-ica's workers to form unions and bargain collectively. Since its introduction
in the 109th Congress by Ted Kennedy (D-MA) and Arlen Specter (R-PA) in the
Senate (S. 842), and by George Miller (D-CA) and Peter King (R-NY) in the
House (H.R. 1696), EFCA has garnered 210 House cosponsors at this writing—just
8 short of a majority—and 42 in the Senate.
EFCA's three main provisions are democratic majority sign-up, first-con-tract
arbitration, and stiffer penalties for illegal employer conduct. Democratic
majority sign-up, also known as card check, would provide for certification
of a union when a majority of the employees at a workplace has signed written
authorizations stating that they want to form a union. Workers seeking to
exercise their fundamental human right to form a union would no longer be
forced into the meat-grinder of the NLRB representation election process.
As Adams and others have noted, this process exposes them to weeks and months
of employer threats, surveillance, coercion, firings, and intimidation, usually
orchestrated by professional anti-union consultants—often followed by months
and years of debilitating delays (Human Rights Watch 2000; Logan 2002; Mehta
and Theodore 2005). When EFCA becomes law, workers will be able to form and
join unions the same way people form and join most other organizations, including
religious congregations, book clubs, the PTA, or amateur sports teams—simply
by signing up.
EFCA's first-contract arbitration provision would address another widespread
human rights violation: even after workers jump through all the hoops under
current law and succeed in forming unions, employers refuse to agree to initial
collective bargaining contracts nearly half the time (FMCS 2004, Table B).
In most cases, the failure to reach an agreement results from employers' delaytactics
and unwillingness to bargain in good faith. There is no real remedy under
current law for this denial of workers' rights. EFCA would give newly formed
unions (and employers) access to mediation and, if necessary, binding arbitration
in order to achieve initial collective bargaining agreements on a timely basis.
Last but not least, EFCA would strengthen penalties for illegal
employer conduct. Penalties are so light under current law that employers
have little incentive to avoid breaking the law to prevent employees from
forming unions. As a result, illegal employer conduct has skyrocketed: according
to the NLRB, between 2002 and 2004 more than 20,000 workers per year were
disciplined or fired for engaging in legally protected union activity,
up from 6,000 in 1969 and fewer than 1,000 per year in the 1950s (Human Rights
Watch 2000; see also NLRB annual reports).
Adams correctly notes there is little chance EFCA will be enacted
in the near term, but it has proven to be a valuable vehicle for educating
and mobilizing union members, the public, and political leaders. More than
90 percent of union members have never been through an organizing campaign
and have little firsthand experience of the employer interference that
workers typically face when they try to form a union, especially in the private
sector. Politicians, in particular, need education about the obstacles to
workplace democracy and the high economic, social, and political price that
the United States is paying for its failure to protect basic human rights
on the job. The campaign for EFCA is an important element of the larger campaign
for workers' rights in the United States.
EFCA is a modest reform, but contrary to Adams's view its impact
would likely be substantial. Susan Johnson (2004) estimates that as much as
a quarter and probably more of the considerable difference in union density
between the United States and Canada is attributable to differences in union
recognition procedures—even though card check is the norm in only half of
Canada's provinces. If Johnson is correct, EFCA could spur an increase in
U.S.
union density of nearly 5 percentage points and perhaps much more.Indeed,
there are reasons to expect an even larger impact, notably the much shorter
time period between petitions and representation elections in Canada and—in
most cases—less intense employer anti-union campaigns. In addition to benefiting
millions of workers, the probable post-EFCA gain in union density could change
the outcome of political elections and help blunt the right wing's assault
on the nation's safety net.
The NLRB representation election process has become such a death
trap that the majority of successful union organizing today takes place outside
of this process altogether. Only 70,000 workers were able to form unions last
year via NLRB representation elections—a tiny fraction of the 57 million non-union
workers who want a union in their workplace (NLRB annual reports; Peter Hart
2005). Labor's abandonment of the NLRB representation election process has
become so pervasive that James Brudney (2005) calls it a paradigm shift. Today,
however, employers can insist on NLRB-supervised elections even when presented
with clear evidence that 100 percent of their employees want a union. EFCA
could tip the balance between workers' aspirations and employer objections
in favor of a more democratic workplace.
Adams's more fundamental concern is that EFCA is so deeply rooted
in what he terms the flawed Wagner Act model that it reaffirms
rather than challenges the legitimacy and primacy of "union-free" ideology
in corporate America. My reading of history is different: despite its limits,
initially the Wagner Act was a powerful force for workplace democracy, human
rights, and social and economic justice. Wagner has since been perverted into
nearly the opposite, as David Brody (2005) notes, starting with passage of
Taft-Hartley—but EFCA would move the law, strongly, in a direction more protective
of workers' rights.
Adams's most compelling point
is that under Wagner, and by extension EFCA, the default option in America's
workplaces is no collective bargaining/ no workplace representation. If workers
want these, they must take affirma-tive—and in the real world, risky—steps
to get them. He argues that collective bargaining and collective representation
should be the default option in nearly all workplaces. This is a tantalizing
prospect, but the devil is in the details, and Adams does not provide them.
Nor does he offer guidance about how to achieve this laudable goal, apart
from noting that the United States has an obligation to require corporate
America to embrace the International Labor Orga-nization's social partnership
model. Far stronger medicine than that will be needed, I suspect, to cure
corporate America of its "union-free" sickness.
