Labor Law

The Employee Free Choice Act (EFCA)

The UAW believes that the right to form a union is a fundamental human right and an essential element of a free and democratic society. The National Labor Relations Act (NLRA) was enacted in 1935 to protect the rights of workers to join unions and to bargain collectively with their employers. But it no longer serves these purposes. Aggressive employer anti-union campaigns, in combination with Republican appointees to the National Labor Relations Board (NLRB) and long delays in the NLRB and the courts, have effectively eviscerated the NLRA’s protections. 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 have an arsenal of legal and illegal tactics to keep the union from obtaining a first contract.

For these reasons, the number one labor law priority for the UAW in the 110th Congress is to enact the Employee Free Choice Act (EFCA) which 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.

1. Card-Check Recognition

A majority 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 per cent 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 per cent 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 relocate 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 per cent of manufacturing companies threaten or “predict” the workplace will close or move if workers vote for the 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 a neutral arbitrator.

EFCA 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 in the last Congress 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 that would make card check illegal. Under this bill, employers would always be assured the opportunity to mount a campaign of intimidation and harassment to stop workers from organizing.

2. 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.

3. Stiffer Penalties

Compounding the problems of employer interference and intimidation is the ineffectiveness of NLRA in remedies. If an employer is found to have illegally fired a worker, for example, the monetary penalty is limited to back pay – 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. There are no punitive damages. There are no provisions for repeat violators, as under OSHA or the Environmental Protection Act. And the limited back pay penalty is so weak that for most employers, it pays 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 Republican appointments made by President Bush to the National Labor Relations Board have been unsympathetic to unions and insensitive to the needs of working people. In 2006 a three-member Republican majority of the board ruled, in a case involving a UAW organizing campaign in Michigan, that registered nurses who act as “charge nurses” are “supervisors” outside the protections of the NLRA. This terrible decision was based on the grounds that the charge nurses assign their co-workers to specific patients on a shift, even thought they also do the same work as the other registered nurses and have no authority to hire, fire, discipline or promote employees. In radically redefining supervisors, this decision may have sweeping implications beyond nurses and the health care industry. The new definition of supervisor could extend to millions of other workers: professional employees who give tasks to assistants, team leaders who give direction to co-workers, working foremen on construction sites and many more workers who for over 70 years have enjoyed the protections of the NLRA.

In 2005, in another case involving the UAW, the NRLB’s Republican majority held that graduate research and teaching assistants are no longer “employees” within the meaning of the NLRA. This ruling dealt a crushing 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. The struggle to bring NYU back to the bargaining table continues today.

Yet a third recent terrible decision from the board held that nursing home workers who were hired through a temp agency could not be in the same bargaining unit as permanent employees, without the consent of the temp agency and the employer.

These are just a few of the many cases decided by a Bush-appointed majority of the NLRB that have interpreted the statute to give fewer protections to fewer workers. The UAW will work with labor-friendly allies in the new Congress to push legislation to reverse these terrible decisions and to restore collective bargaining rights to nurses, professionals and team leaders, graduate teaching and research assistants, and to employees hired through temp agencies.

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