Iowa Sen. Tom Harkin recently introduced the Employee Free Choice Act, a bill workers’ rights advocates are calling the single most important labor bill introduced since the 1930s.
In the simplest terms, the EFCA empowers workers to form unions and collectively bargain for stronger benefits, wages and workplace standards. The EFCA allows employees, rather than employers, to determine whether they want to form a union and how they do it.
The EFCA has three main components.
First, the EFCA provides stronger enforcement mechanisms to punish employers who coerce, intimidate and discriminate against workers who advocate stronger worker rights. Current penalties for breaking labor laws are incredibly weak and are tantamount to a slap on the wrist. Under the EFCA, if the National Labor Relations Board found that employers were found to have illegally fired a pro-union employee, employers could be forced to pay three times the back pay and a $20,000 fine for each employee unlawfully terminated. The EFCA would provide employers a strong disincentive to unlawfully fire or retaliate against employees seeking unionization.
Second, the EFCA would allow workers or employers to request mediation if initial contract negotiations fail. Existing labor laws allow employers to endlessly prolong or delay negotiations – what is called “surface bargaining.” Under the EFCA, unions could demand collective bargaining within 10 days of unionization and if agreements cannot be made within 90 days, employees or employers could request federal mediation and receive binding arbitration within 30 days. Endless negotiations that lead nowhere would become a thing of the pass.
Finally, and perhaps most importantly, employees could create a union through what is called “majority sign-up.” If a majority of employees sign cards in support of organizing a union, the EFCA would mandate that employers must automatically recognize the union.
Secret ballots could then be utilized to determine union representation if 30 percent of those who signed cards desired it. It gives the employees, rather than the employers, the choice of whether or not they want to unionize and how they approve representation.
It’s this third point about creating a union has become the major point of contention in the debate over the EFCA.
Opponents to the EFCA – largely big businesses like Wal-Mart Stores Inc., groups such as the National Chamber of Commerce and libertarian think-tanks such as the Heritage Foundation – contend that the EFCA would abolish the secret ballot and deny workers the right to vote. They’ve crafted a message that sure sounds good – we have a strong tradition of respecting the secret ballot and our initial reaction would be that secret ballots are inherently fair.
But we need to take a step back and take an honest look at who really has power in employee-employer relations and recognize that the debate over secret ballots is a dubious comparison.
Secret elections to determine unionization is inherently unlike the secret elections to determine who is elected to government office. Employers are intrinsically more organized and better situated to advocate for their interests over those of employees who begin from a much more disorganized perspective.
Employers can threaten to fire their competition. They can determine when and where employees vote. They can stifle debates and force employees to attend anti-union training sessions. And, if union support succeeds, they can indefinitely delay a union from having representation through protracted negotiations or close its business location entirely.
One only needs to look at Wal-Mart as an example. For decades Wal-Mart has proactively ensured that employees at none of their stores are capable of unionizing. Wal-Mart indoctrinates new hires with anti-union training films and regularly trains management how to handle employees who may attempt to unionize.
But it’s not just training and rhetoric. Wal-Mart maintains a rapid response team that deploys immediately to any of its stores to quash unionizing attempts. Pro-union employees face intimidation or threats of being fired, while Wal-Mart hosts captive-audience meetings to discourage union support.
When workers have voted on unionization, Wal-Mart stacks the deck with employees trained to vote against unionization. And when union accreditation has succeeded, as one effort did in Jonquière, Quebec in 2005, Wal-Mart simply closed the store. Wal-Mart repeated this action when it shut down its unionized tire and lube shop in Gatineau, Ottawa in 2008.
But Wal-Mart, it should be noted, is just one of many corporations that are unabashedly hostile to unionization and have an inherent upper hand under current labor laws.
Employers presently have no obligation to recognize a workers’ union even if 100 percent of workers sign union support cards. And the reality is that even current law provides employees zero rights to a secret ballot – calling a secret vote is entirely at the employer’s discretion. When critics talk about protecting private voting, they’re really talking about protecting employers’ right to call for special elections to determine whether a union is created.
And when employees vote to create a union, existing law doesn’t protect that newly-formed union from employers’ efforts to indefinitely drag out the bargaining process. Employers can effectively prevent any agreement on a contract through endless delays in negotiations.
So when you hear claims that the EFCA undermines secret voting, remember that this debate is really about whether employers should continue to have greater power over their employees. It’s about workers’ freedom to choose whether or not they want to unionize and how they go about doing it. It allows the workers, not the employers, to choose a card check or secret ballot system.
The total EFCA package rectifies the power disparity between workers and employers. Congress needs to hear your voice in support for workers’ rights and the Employee Free Choice Act.
Nic Swiercek is a graduate student studying History. Reach him at nicswiercek@dailynebraskan.com.
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