Employee Free Choice

The Argument

A majority of America’s workers would join a union if they could, but federal law makes it nearly impossible. Under the current system for recognizing unions, one side—the corporation—has all the power: it controls the information workers receive and routinely poisons the process by intimidating, harassing, coercing, and even firing people who try to organize unions. Penalties against employers who violate the law are so insignificant that they have virtually no effect. The system bears no resemblance to a fair, democratic election.

America’s workers should have the freedom to choose a majority sign-up system. Ever since the Great Depression, federal labor law has provided the option for workers to form a union when a majority has signed authorization cards and those cards are validated. This is a thoroughly American process: a petition. But it is currently the corporation’s choice—not the workers’ choice—whether to follow that process.

Majority sign-up should not be stopped by a minority in Congress. No one doubts that the Employee Free Choice Act is supported by a majority of the House and Senate and that President Obama is eager to sign it. It is not yet law only because slightly more than 40 senators are presently willing to filibuster the measure and frustrate majority rule.

The Right is Wrong

Opponents argue that the Employee Free Choice Act eliminates the “secret-ballot election.” But in fact, both the election and majority sign-up processes are permitted by current law and both would continue to be permitted. The difference is that current law gives employers the right to choose between the two processes while the Act would give the choice to workers. Since it is the workers’ right to organize, they should be free to choose the representation process.

Opponents argue that a “secret-ballot election” is “American” and majority sign-up is not. But in fact, the current NLRA election process does not resemble any candidate or referendum election in America—the rules on campaigning and voting are entirely stacked to benefit management. Majority sign-up is essentially a petition, a concept that’s so American it’s in the U.S. Constitution.

Opponents argue that the Act’s arbitration provisions are unfair. In fact, the rules of arbitration give management and labor equal rights. And arbitration is so common that corporations require it of consumers in nearly all pre-printed form contracts.

Progressive Solution

The Employee Free Choice Act would help reform our broken labor law system by solving three egregious problems in the NLRA:

• Currently, employers can choose whether to recognize the employees’ union through a majority sign-up or an NLRA election process. Employers who want to fight their workers universally select the election process—because it’s been turned into a burlesque of legal and illegal intimidation. The solution: allow the workers to choose which recognition process to use.
• Once a union wins recognition, employers use a wide variety of tactics to avoid reaching a contract. Nearly half the time, management fails to agree to a contract with a newly recognized union. The solution: require mediation and binding arbitration when, after a period of months, the employer and workers cannot agree on a first contract.
• Employers routinely violate the NLRA because penalties for breaking the law are insignificant. The solution: strengthen penalties against companies that coerce or intimidate employees.

Fast Facts

Most working families are struggling to make ends meet. Since 2001, real wages have declined, benefits have shrunk, and good jobs have become harder to find. At the same time, basic costs—health care, gasoline, and food—have risen dramatically. [CAF]

Workers who belong to unions receive higher wages and better benefits. Wages for union workers are nearly 30 percent higher than for non-union workers ($886 median weekly earnings vs. $691, or a total of $10,140 more a year). [U.S. Department of Labor] Union workers are more than 50 percent more likely to have employer-provided health insurance (79 percent compared with 52 percent of non-union workers), and they are nearly three times more likely to have defined-benefit pensions. [U.S. Department of Labor]

More than half of all U.S. workers—nearly 60 million—say they would join a union right now if they could. [Peter D. Hart poll] Their best opportunity to get ahead is by uniting with co-workers to bargain with employers for better wages and benefits. Working people want that opportunity.

But the current system for forming unions and bargaining with employers is broken. Every day, corporations deny employees the freedom to decide for themselves whether to form unions to bargain for a better life. Corporations routinely intimidate, harass, coerce and illegally fire people who try to organize unions. During a National Labor Relations Act (NLRA) election campaign:

• 34 percent of employers illegally fire at least one worker for union activity.
• 75 percent of employers hire consultants or union-busters to help them fight the union.
• 63 percent of employers force workers to attend one-on-one anti-union interrogation meetings with their own supervisors.
• 54 percent of employers threaten workers in such meetings.
• 57 percent of employers threaten to close the worksite if the union wins the election. [Economic Policy Institute]

The majority sign-up process has proven to work. Companies such as Cingular Wireless, Kaiser Permanente, and DaimlerChrysler have voluntarily let employees choose by majority sign-up whether to have a union—and this process has created less hostility and polarization in the workplace. In addition, 12 states allow certain public and private workers to join unions through the same majority sign-up process that is part of the Employee Free Choice Act. Under these laws, more than half a million workers have joined unions since 2003. [American Rights At Work]

Even after the union wins an election, employers are still able to block a union contract. Forty-four percent of unions newly formed by workers pursuant to the NLRA election process are unable to get management to agree to a union contract. [AFL-CIO]

Americans overwhelmingly support the Employee Free Choice Act. Seventy-two percent of Americans (87 percent of Democrats, 69 percent of Independents, and 48 percent of Republicans) favor the legislation after hearing both sides of the debate. Only 21 percent oppose the legislation. [Hart Research]

Public Pulse

Americans strongly favor union organizing.
“Generally speaking, would you favor or oppose a new law that would make it easier for labor unions to organize workers?”
Favor 53%
Oppose 39%
No Opinion 8%
Gallup Poll, March 14-15, 2009

Americans overwhelmingly support the Employee Free Choice Act.
• 72% of Americans favor the legislation after hearing messages from both sides of the debate.
• Only 21% oppose the legislation. 87% of Democrats, 69% of Independents, and 48% of Republicans favor the Employee Free Choice Act.
Hart Research Associates, December 4-10, 2008

Americans strongly support all three provisions of the Act.
• 75% of Americans favor the provision that “Allows employees to have a union once a majority of employees in a workplace sign authorization cards indicating they want to form a union.”
• 64% favor the provision that “Strengthens penalties for companies that illegally intimidate or fire employees who try to form a union.”
• 61% favor the provision that “Establishes binding arbitration in cases where a company and a newly certified union cannot agree on a contract after three months of negotiating.”
Hart Research Associates, December 4-10, 2008

Most Americans don’t know that employers generally oppose unions.
• Just 47% of adults know that when elections are held in a workplace to determine whether a union will represent employees, employers generally oppose the union and try to convince employees to vote no.
• 30% of Americans believe that employers generally take no position and let employees decide on their own, and 21% are not sure.
Hart Research Associates, December 4-10, 2008

Resources

American Rights at Work 1100 17th Street NW, Suite 950, Washington, DC 20036, phone: 202-822-2127

AFL-CIO 815 16th Street NW, Washington, DC 20006, phone: 202-637-5000

Service Employees International Union (SEIU) 1800 Massachusetts Avenue NW, Washington, DC 20036, phone: 202-350-6600

Campaign for America’s Future 1825 K Street NW, Suite 400, Washington, DC 20006, 202-955-5665

Human Rights Watch, Unfair Advantage: Workers' Freedom of Association in the United States under International Human Rights Standards, 2000.

Human Rights Watch, Discounting Rights, Wal-Mart’s Violation of U.S. Workers’ Right to Freedom of Association, 2007.

U.S. House Education and Labor Committee, Report on the Employee Free Choice Act of 2007.

Harley Shaiken, Unions, the Economy and Employee Free Choice, Economic Policy Institute, 2007.

Chirag Mehta and Nik Theodore, Undermining the Right to Organize: Employer Behavior During Union Representation Campaigns, 2005.

Gordon Lafer, Free and Fair?: How Labor Law Fails U.S. Democratic Election Standards, American Rights at Work, 2005.

John Logan, “Consultants, Lawyers, and the 'Union Free' Movement in the USA Since the 1970s,” Industrial Relations Journal, vol. 3, no. 3, 2002.

Stories

“The New York Times recently reported that the earnings gap is the widest since 1928, with the richest one percent of Americans having captured most of the economy’s 2005 growth, and the bottom 90 percent getting nothing. Between 1979 and 2005, according to MIT professor Thomas Kochan, the productivity of American manufacturing rose by about 70 percent, but the real wages of production workers remained flat. The economic pummeling of ordinary Americans has many causes…but one of the big reasons is industry’s relentless assault on unions, an attack abetted or tolerated by most U.S. administrations for three decades. Unions not only raise wages for their members; they work for a fairer wage structure generally, both in their spillover influence on wider patterns of pay and in their political work for a fairer brand of capitalism.” [American Prospect, April 1, 2007]

“The House of Representatives passed a bill last week that would strengthen the rights of employees to form unions…If Mr. Bush were, as he claims, truly concerns about rising income inequality and truly committed to improving the lives of America’s middle class, he would support the legislation and urge the Senate to approve it…Labor unions have a role to play in helping to fix today’s economic ills – most notably, worsening economic inequality, a problem that’s cause in part by unions’ decline and the workers’ resulting lack of bargaining power.” [New York Times, March 6, 2007]