Freedom of association rights fix

The Employees Free Choice Act (EFCA) (S. 842 and H.R. 1696) is the result of the long-brewing frustration with the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB), a bit of which I wrote about in two previous posts (here and here). EFCA is designed to close loopholes in the NLRA that have allowed employers to harass, coerce, threaten and penalize workers who try to form unions and to refuse to bargain in good faith when new unions are formed. The following is from the AFL-CIO's summary (pdf file) of EFCA provisions:

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:

a. 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.

b. Treble Back Pay: Increases the amount an employer is required to pay when an employee
is discharged or discriminated against during an organizing campaign or first contract drive
to three times back pay.

c. Civil Penalties: Provides for civil fines of up to $20,000 per violation against employers found
to have willfully or repeatedly violated employees’ rights during an organizing campaign or first contract drive.

At least 213 House of Representative members (including about 14 Republicans) are co-sponsors of the EFCA House version (including the representative of my TX district, Chet Edwards, D-TX-17), and at least 44 Senators (including one Republican) are co-sponsors of the EFCA Senate version. (These numbers do not include any of the incoming members of the newly-elected 110th Congress.)

Employers, their shills and anti-union right-wingers argue that if enacted EFCA would deprive workers of their democratic rights to vote for or against union representation in a secret-ballot election (because of EFCA's card-check union certification provision). Let's put that spurious claim to bed right now: when it comes to workers' freedom of association, there isn't any "democratic" or "free" choice in the workplace. And anyone who argues differently is either ignorant of the facts or a liar or both.

Through the use of finely-tuned but aggressive deceitful trickery, corporations and their lawyers and consultants have turned inside out the law that is supposed to protect workers' rights 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. (Some examples of that trickery are here, here and here.)

But with respect to card-check certification, it has always been legal (and still is) under the NLRA for an employer to recognize a union based solely on the fact that a majority of its workers sign a card designating the union as their bargaining agent. Every union that I'm aware of, including the two I worked for, IUE (now IUE-CWA) and UNITE (now UNITE-HERE), have historically used majority card-check (verified by an impartial, outside third-party) to attain employer recognition as the bargaining agent. Examples:

• 130 workers used the card-check process at USF Bestway in Phoenix, AZ this month to certify that they desired the Teamsters to represent them.
• Last year a little over 5,000 janitors in Houston received employer recognition for their union (SEIU) through a card-check procedure. (Just two weeks ago, in fact, the Houston janitors secured their first contract, which will more than double their income within the next 24 months.)
• North Syracuse Police officers and staff this month secured employer recognition of their union through a card-check.
• Thousands of Cingular Wireless workers secured their union representation through card-check.

So, if it's perfectly legal for American employers and their workers to utilize card-check procedures to establish a collective bargaining relationship, why is this provision needed in EFCA? Because under current law employers can legally refuse to recognize a a union even if 100 percent of the workers have designated one as their collective bargaining agent. Employers can, and most times do, simply demand that the NLRB conduct an election--which then gives management plenty of time to take advantage of loopholes in the NLRA (or simply violate the law) and throughly intimidate workers through an aggressive anti-union campaign. EFCA certification on the basis of signed authorizations will put an end to this prevalent abuse.

To sum it up, the law has failed and the process is broken. The repairs provided under the Employee Free Choice Act, however, will go a long way to restoring the law to its original intent, that is, to encourage the practice and procedures of collective bargaining and to assiduously protect the free association rights of American workers. EFCA should pass the 110th Congress, but the next president, not the current failed one, will be given the honor to sign it into law.