Crib Sheet: The Employee Free Choice Act

Why Card Check Neutrality is good for workers.

By Matt Singer

Are secret ballots the fairest way to make democratic decisions?

That’s the question at the heart of the arguments over the Employee Free Choice Act, a measure to bring American labor law into the 21st century.

While most of us would respond with a gut reaction that secret ballots are fair—a reaction that opponents of labor unions rely on—a better analogy might go like this. Are secret ballot elections—with timelines manipulated by incumbents, with threats of nuclear retaliation against any city that had the audacity to vote against Dear Leader—really the best way to make democratic decisions?

Under current American labor law, workers choose whether to unionize through elections rife with threats from management. Fortunately, that may change soon. The U.S. House already passed the Employee Free Choice Act. The Senate may take it up soon.

So what’s the skinny on these labor law changes?

First, let’s look at the current (exceedingly painful) process for establishing a union:

1. Workers must collect cards from at least 30 percent of employees who work in the potential bargaining unit (the group of workers that the card-collecting employees are trying to unionize).
2. When the cards are submitted to the National Labor Relations Board, the Board checks them for authenticity. The company is allowed to challenge the signatures for a variety of reasons.
3. Once the cards are deemed sufficient, the NLRB works with both the workers and the employer to schedule an election. During this step, the employer is free to challenge the scope of the bargaining unit for a variety of reasons under a number of vague ad-hoc rulings.
4. The period between the date the election is set and the day of the actual election is usually marked by a number of festivities. Pro-union workers play the “try to grab workers coming and going from the workplace for a handful of time while avoiding restrictions on union speech at the workplace and anti-fraternization rules” game. Meanwhile, management often tries its hand at a number of different games, including “illegally firing union supporters to make an example,” “hinting at the future closing of the workplace, resulting in layoffs,” “mandatory meetings explaining how awful unions are,” “give preferential treatment to union opponents,” and “give awful treatment to union supporters.” The best part of the management games? While some of them are illegal, an allegation that management has broken the law delays the vote on unionizing and carries little-to-no danger of real penalties. Score!
5. The election is actually held, votes are counted, and the results are certified. At this point, a union will be recognized or not recognized.
6. Legal challenges, bargaining delays, and foot-dragging. Of course, in a bureaucratic nightmare, nothing ever really ends. Even after a vote to unionize, companies can drag on the process for months, refusing to negotiate, bringing challenges, and making sure that negotiations go nowhere.
7. They sic Jack Bauer and Chuck Norris on your ass. Just for fun.

Pretty sweet process, huh? Hell yeah—if you’re a CEO. If you’re Joe Six Pack, it sounds like trying to join that union will be a real pain in the ass—might as well keep hustling for $8.00 an hour and no health care.

What Does the Employee Free Choice Act Do?

Under the EFCA, the employer will recognize a union if a majority of workers sign cards stating their desire to form one (a process known as a “card check”). If the employer refuses to recognize the union, the newly formed union and the workers go to a binding arbitration process.

The EFCA has at its heart a really radical idea: Workers are qualified to decide by themselves whether they want to be represented by a union.

Now, the union-busting machine has two ways of responding to the EFCA—the arguments they make in public and the arguments they make in private. In public, they’ll say that “secret ballots” are preferable to the card-check method when it comes to democratic decision-making. In private, they’ll admit that they need the current process if they have any hope of retaliating against workers.

In this regard, too, the data is clear:

Card Check Results in Less Intimidation of Employees. Academic researchers surveyed workers who had gone through either card-check processes or NLRB elections and asked them whether they had been intimidated by either the union or by their employer during the process. Here’s what they were told:

In other words, while reports of union intimidation were more frequent in card-check campaigns than in NLRB elections, workers reported more intimidation by employers in both elections and card-check campaigns. Union intimidation of workers, in other words, isn’t the problem.

Still, there’s no doubt that the far right will pull out all the stops to defeat any legislation that makes it easier for workers to organize unions, since union workers earn better wages and benefits. The Chamber of Commerce has already pledged to fight any change to current union law—whether it is to require recognition of the card check process or simply to require that employers submit to arbitration when dealing with a union. Stiffer penalties for illegal union-busting tactics are also unlikely if the big corporations have their way.

But if Congress does right by workers you can expect two things: fewer threats and more unions.

Matt Singer works for Forward Montana, a nonprofit dedicated to getting young people more involved in politics. Skyrocketing personal debt and a glut of McJobs make him think that a new golden era for unions is just about due in America.

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Comments

1. While Card Check decreased management intimidate, it also increased union intimidate. Shouldn’t this serve as a red flag that BOTH methods are unfair and that a new method needs to be designed???!!!

   After all I’ve had family members that have faced intimidated by both management and unions. while I support the right of works to organize, the fact the workers who support and do not support the union becoming public record is a damaging thing for those workers who choose not to support collective bargaining, should the union win approval. Its not as much about intimidate as much as retribution after the fact.

   — Mike - Apr 2, 01:53 PM - #
   
   

2. Matt, first of all I would like to thank you and those academics upon whose research you rely for your declarations about what is good for the working class. I’m sure you are just the kind of people I would enjoy spending a Saturday afternoon with around the barbeque knocking back a few cold ones and listening to Haggard.

   I would also like to express my appreciation for people like Pelosi and Reid in the Deomcratic party for looking out for our best interests. I’m sure they are motive driven by their working class backgrounds and lifestyles. The boatloads of money given to them by organized labor probably never enters their minds.

   Please don’t think me ungrateful, but I have issues with the Employee Free Choice Act and some ideas about how to really make unionization fair for working people. I can read some and, when I have less than a six pack under my belt, can occasionally come up with a coherent thought.

   Voting for a union is likely just as important as voting for a President. Darn right I want my ballot to be secret.

   This next one is a biggie. Barganing units should be guaranteed the opportunity to evaluate more one union. Pension plans and other benefits vary greatly and the choice of a particular union should also be decided by secret ballot.

   Their should be severe, and I mean kickass, penalities for retribution or intimidation by either the company or a competing union.

   Unionization is a political process. Their should be proscribed venues for all sides to to present their respective positions with a preset ballot date. We know politics and rhetoric go hand in hand. Companies may warn of job security and unions often tout pay and benefit packages which do not materialize. However, it is not necessarily an idle threat that a company may go out business. Many union companies have ceased to exist leaving their employees with decreased pension payouts and medical coverage. From what I hear, academics and politicians have pretty secure retirement plans so they are probably not aware of the problem.

   I’m sure I lack sufficient erudition to work out the details involved in assuring workers the resonable requests I have humbly outlined above.

   I will leave that up to the academics, pundits and politicians.

   Just please consider my points and let me know what you come up with.

   RAGGEDSTEP

   — RAGGEDSTEP - Apr 3, 11:01 AM - #
   
   

3. Mike – so what is this new system that will be Intimidation Free? Part of the problem is that intimidation is an inherently subjective thing to measure — you simply ask people whether they felt intimidated. Some people will always feel intimidated.

   While card check results in increased reports of union intimidation, it is notable that more workers report intimidation by management even in card check cases.

   As for some sort of middle ground, as I made clear in the piece, the problem is that business associations are promising to fight tooth-and-nail against even minor reforms to American labor law. The best chance to get reasonable reform may very well be to demand expansive reform.

   But bottom line — the Employee Free Choice Act, even if imperfect, is a significant improvement over current labor law. We’d be better off making the switch and then tinkering than sticking with the status quo.

   — Matt Singer - Apr 4, 11:08 AM - #
   
   

4. I’m sorry, but I don’t buy it. We are talking about having workers have to take a position on whether they support the union in public via whether they submit the card. What happens to the worker who does not support the union? There is no anonymity to protect them.

   Forget hostility, I’m far more concerned about the retribution that workers may feel, or fear, if they did not support a union and the shop was unionized.

   My Family has seen both sides of the union argument, but this seems to be opening the door to old-school union tactics of punishing those who do not support the union.

   If signatures were collected by an independent 3rd party and not realized in public, or if a seal ballots were used to clear the 30% threshold, I would support it—-but this proposal is wrong on so many levels, and conflicts greatly with my idea of what being a progressive is.

   I support the right of workers to unionize, but also their right not to. Workers rights includes the right of a worker who did not submit a card check to have to fear reduced hours, harassment, and bad working assignments. These are obvious outcomes of the proposal as it stands now, and that is clearly wrong.

   — Luna - Apr 4, 01:19 PM - #
   
   

5. I’ll take the lack of responce to mean that there isn’t one.

   — Luna - Apr 6, 03:59 PM - #
   
   

6. I worked for the NLRB as a Field Agent, and let me join the chorus of voices that say “the system as it stands is broken.” Getting the NLRB involved in a union-recognition campaign is the best indicator of whether or not the campaign fails — the cards are too stacked on the employer’s side.

   Luna,
   You described potential harmful side-effects of the new system (which by no means supplants the old system, but simply adds another venue for certification), such as retaliation against workers who don’t want to join a union, is both against union bylaws and federal law. While instances of that even in card-check campaigns today are very few, there are remedies that compensate the victim and punish the perpetrator.

   —————

   I think the next big step for labor policy should be the establishment of an agency that would supply low- to no-interest loans to employees who wish to buy out their company and run it democratically (like in The Take). The agency would provide advice and expertise, and work out a long-term repayment plan for the loan. How ridiculously awesome (and therefore will never happen) would that be?

   — Patrick St. John - Apr 6, 04:39 PM - #
   
   

7. I don’t accept the idea that the legal system is the appropriate method to fix it, as your argument is that it should be used to remedy a foreseeable, and therefore preventable, outcome. This is shows a lack of responsibility towards building the right system the first time and instead shifting off the problems to lawyers.

   What is wrong with just anonymous check cards?

   The second idea sounds great at first, but then I think of Freddie Mac, Sallie Mae, etc. There would be too much political pressure to issue bad loans, that could leave tax payers in another S&L bailout.

   — Luna - Apr 6, 08:10 PM - #
   
   

8. Sorry for the slow response — kinda dropped the ball here.

   As for intimidation, I’ll just let the survey data speak for itself — union intimidation isn’t the biggest concern here — either with elections or card check. When it occurs, it should be dealt with legally.

   Not all evils are preventable. On balance, though, it makes sense to me to move to a system with less overall intimidation.

   As for anonymous check cards, who would collect them? Would a union tell the government they want to unionize a location and government-paid “neutral” agents would simply ask workers whether they wanted to join a union and then tally the cards at the end of the day?

   If you’re going to pitch this idea, it needs to be better fleshed out.

   — Matt Singer - Apr 21, 05:29 PM - #