Labor Law

The Employee Free Choice Act (EFCA)

The UAW believes that the right to form a union is fundamental human right and that it is an essential element of a free and democratic society. The National Labor Relations Act of 1935 (NLRA) is the federal law that protects the rights of workers to join unions and to bargain collectively with their employers. Unfortunately, over the years these rights have been severely weakened because of Republican appointments to the National Labor Relations Board (NLRB), aggressive employer anti-union campaigns that walk the line between legal and illegal activities, ineffective NLRA penalties for employers who violate worker rights, and lengthy employer appeals of NLRB cases in the courts. As a result, it is now very difficult for workers to successfully organize by going through an NLRB-conducted election. When workers do choose to be represented by a union, moreover, employers use a variety of legal and illegal tactics to keep the union from obtaining a first contract.

For these reasons, the UAW strongly supports the Employee Free Choice Act (S. 843; H.R. 1696). EFCA would (1) require employers to bargain with a union on the basis of card check recognition; (2) provide for mediation and arbitration for a first contract; and (3) increase penalties for employer violations of the NLRA.

Card-check recognition

Although workers’ right to form unions free from employer interference is guaranteed by the NLRA and by international human rights law, over the last 20 years, U.S. employers — encouraged by union-busting consultants — have increasingly resorted to both legal and illegal tactics to keep workers from forming unions. A large and growing percentage of employers either take advantage of loopholes in the NLRA or simply violate the NLRA to spy on, harass, pressure, threaten, intimidate, suspend, fire, deport, and otherwise victimize workers who attempt to exercise their right to act collectively through a union.

Employer interference has a devastating impact on workers’ right to form a union. Thirty-six percent of workers who vote “no” in union representation elections explain their vote as a response to employer pressure, according to a Cornell University survey. According to the same survey, employers illegally fire at least one worker in 25 percent of all organizing campaigns. Ninety-two percent of employers make their employees attend “captive audience” meetings, where they must sit through one-sided, anti-union presentations during company time. (Union supporters, of course, are given no opportunity to speak.) On top of captive audience meetings, 78 percent of employers have supervisors hold repeated closed-door, “one-on-one” meetings with workers which are very intimidating to most workers. Additionally, in the manufacturing sector especially, employers routinely threaten to close or to move the workplace if workers vote for the union. Although the NLRA makes it illegal to threaten a plant closing, union-busting consultants coach management on how to phrase such threats as legal “predictions.” Over 75 percent of manufacturing companies threaten or “predict” the workplace will close or move if workers vote for the union.

Compounding the problems of employer interference and intimidation is the ineffectiveness of NLRA remedies. If an employer is found to have illegally fired a worker, for example, the monetary penalty is limited to backpay — minus any money the fired worker earned in the meantime. The penalty for illegally threatening to close the plant is for the employer to post a notice saying they won’t do it again. Thus, for many employers, firing workers who are identified with the union organizing campaign and paying the backpay is simply a cost of keeping out a union.

Because it is very difficult for workers to form a union by going through the NRLB election process, the UAW and other unions now use an alternative technique known as “card-check recognition.” Under card check, the employer voluntarily agrees to recognize the union if the union presents signed union authorization cards from a majority of workers. In most instances, the authorization cards are validated by an outside person, such as an arbitrator or religious leader.

The Employee Free Choice Act (S. 843; H.R. 1696) requires employers to recognize and bargain with unions who have demonstrated majority support on the basis of card check. With card-check recognition, the union is able to organize workers without the assault from a full-blown anti-union campaign, which is generally triggered at the moment a union files a representation petition with the NLRB. Without the interference and intimidation of an anti-union campaign, workers have a much higher rate of success in unionization drives.

Noting the recent success of card check recognition by the UAW and other unions, Congressional Republicans introduced legislation that would bring a halt to these successes. Rep. Charles Norwood, R-Ga., and Sen. Jim DeMint, R-S.C., introduced the “Secret Ballot Protection Act of 2005” (H.R. 874; S. 1173), to make card check illegal. Under this bill, employers would always be assured the opportunity to mount a campaign of intimidation and harassment.

Mediation and arbitration for first contract

When workers do manage to get over the obstacles to unionizing, they frequently face employer resistance to negotiating a first contract. With the use of anti-union consultants, delay and the inadequacies of the NLRA, many employers drag out negotiations for a first contract until one year passes, at which time employees who were active in the “vote no” committee file a petition to decertify the union. In fact, 32 percent of workers who demonstrate majority support for union representation lack a collective bargaining agreement one year later. Without a contract as a bar, the decertification often goes forward and the union — seen as weak and ineffective — is frequently voted out.

EFCA 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). If the FMCS is unable to bring the parties to agreement after 30 days of mediation, the dispute is referred to arbitration and the results of the arbitration are binding on the parties for two years. The time limits may be extended by mutual agreement of the parties.

Stiffer penalties

The NLRA has woefully inadequate remedies for employer violations. There are no punitive damages; there are no provisions for repeat violators, as under the Occupational Safety and Health Act or the Environmental Protection Act; and the limited back pay penalty is so weak that it is in the economic interest of most employers to fire key union supporters to chill an organizing drive. To rectify this situation, the third prong of EFCA would strengthen the penalties for employer violations of the NLRA in three ways.

EFCA provides that the NLRB must seek a federal court injunction against an employer whenever there is reasonable cause to believe that the employer has discharged or discriminated against an employee, threatened to discharge or discriminate against an employee, or engaged in conduct that significantly interferes with employee rights during an organizing or first contract drive. This provision would get discharged union supporters back in the workplace without the delay — often years - that occurs under current law.

EFCA provides for triple back pay when an employee is illegally discharged or discriminated against during an organizing campaign or first contract drive. This provision would make it more expensive for employers to fire union supporters.

Finally, EFCA 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.

Other labor law issues

The Bush administration has gone out of its way to target workers and their unions. President Bush’s Secretary of Labor, Elaine Chao, is publicly hostile to labor unions and deaf to the needs of workers in general. The Department of Labor has issued regulations changing the LM-2 reports unions must file annually, imposing new requirements that are burdensome, time-consuming and costly for small local unions.

The persons President Bush has appointed to the National Labor Relations Board have also been, by and large, unsympathetic to unions and insensitive to the needs of working people. For example, the Republican members on the board ruled last year, in a case involving the UAW, that graduate research and teaching assistants are no longer “employees” within the meaning of the NLRA. This ruling dealt a blow to unionization efforts by graduate assistants at a number of universities and led New York University to refuse to continue to recognize and bargain with the UAW at the expiration of our collective bargaining agreement.

Action

• Tell Congress that federal labor law is broken and must be fixed, or the right of workers to join a union will be extinguished.

• Tell Congress to pass the Employee Free Choice Act (S. 843, H.R. 1696) so workers can unionize with less interference and harassment from employers and so they can secure a first contract. Urge your senators and your representative to co-sponsor this critically important bill if they have not done so already.

• Tell Congress to reject legislation that would make card-check recognition illegal, such as the Secret Ballot Protection Act (S. 874; H.R. 1173).

• Tell the White House to stop harassing unions with overly burdensome reporting requirements.

• Tell the Senate to reject nominees to the National Labor Relations Board who are hostile to workers and to unions.

Protecting individual creators’ rights

Many individual creators, such as writers represented by UAW Local 1981, the National Writers Union, face a growing number of threats that jeopardize their ability to earn a livable wage. They are routinely forced to sign away rights to their written products in perpetuity, and their work is often used by large media companies without permission and without payment. Although Congress has passed several laws to strengthen the rights of copyright owners, these laws have mostly benefited the media companies and have failed to protect individual creators.

There is a fundamental imbalance of power in the marketplace that puts individual creators at a severe disadvantage in their dealings with large media companies. Creators have been forced into court to defend their rights because a fair negotiating system does not exist. But recourse to the courts is expensive and time-consuming.

This imbalance of power is exacerbated by the fact that federal antitrust law significantly limits the ability of individual creators to join together to deal with media companies. Virtually all individual creators who are NWU members are “independent contractors” and not employees with respect to their creative product, and the act of joining together to negotiate with the purchasers of their labors may be viewed as a violation of the antitrust law.

The UAW and its allies in the creative community have been working to build support in Congress for an amendment to the federal antitrust law to give this small class of individual creators who are independent contractors the ability to join together to deal with large media companies that purchase their services, just like most other employees are able to do with their employers. Congress has granted antitrust exemptions in areas such as Major League Baseball, sports broadcasting, export associations, and shippers and soft drink distributors. During 2006, we will continue to work for legislation to achieve this important objective for individual creators.

Action

• Educate Congress about the needs of individual creators. Urge Congress to pass copyright legislation to protect the rights of individual creators and to establish an antitrust exemption that will allow creators to collectively negotiate for fair compensation for their work.