Debate
Proponents' views
Proponents of the legislation assert that the change is necessary to protect workers' rights to join unions. Under current law, employers are not required to take as determinative their workers' signed authorization forms designating a union as their representative "and may insist that the workers use a secret-ballot election conducted by the National Labor Relations Board (NLRB) to establish their union "even if 100% of the employees provide the NLRB with signed authorizations designating the union as their bargaining agent."[clarification needed][citation needed] The EFCA would allow workers to have their union certified as their bargaining agent by the NLRB if a majority of them have signed valid authorizations."[27] EFCA proponents state that under current law the union ballots are "secret in name only" by citing experts such as University of Oregon professor Gordon Lafer, who in testimony before the U.S. Congress stated:
In the American democratic tradition the principle of the secret ballot is not simply the fact that you go into a voting booth and pull a curtain and nobody sees what you do. It is your right to keep your political opinion private to yourself before, during and after the act of voting; that you can't be lured or coerced into a conversation that is designed to make you reveal your political preferences. In the NLRB, while the vote does take place in a booth where nobody sees what you're doing, management is allowed to engage in a series of behaviors in the lead up to the vote that force the vast majority of workers to reveal how they're going to vote long before they ever step into the booth.[28]
A U.S. House Committee on Education & Labor report asserted that the overall purpose of the Employee Free Choice Act is "allowing employees to make their own decision about whether they want to bargain together—to advocate for fairer wages, benefits and working conditions—without the threat or fear of harassment and retribution and fear of losing their livelihood."[29]
The committee's Democrats quoted the conclusion of the nonpartisan international human rights organization Human Rights Watch:
[At present] a culture of near-impunity has taken shape in much of U.S. labor law and practice. Any employer intent on resisting workers' self-organization can drag out legal proceedings for years, fearing little more than an order to post a written notice in the workplace promising not to repeat unlawful conduct. Many employers have come to view remedies like back pay for workers fired because of union activity as routine costs of doing business, well worth it to get rid of organizing leaders and derail workers' organizing efforts.[30]
In his remarks accompanying the bill's introduction, Representative George Miller (D-CA), chairman of the House Committee on Education and Labor, stated:
The current process for forming unions is badly broken and so skewed in favor of those who oppose unions, that workers must literally risk their jobs in order to form a union. Although it is illegal, one quarter of employers facing an organizing drive have been found to fire at least one worker who supports a union. In fact, employees who are active union supporters have a one-in-five chance of being fired for legal union activities. Sadly, many employers resort to spying, threats, intimidation, harassment and other illegal activity in their campaigns to oppose unions. The penalty for illegal activity, including firing workers for engaging in protected activity, is so weak that it does little to deter law breakers.
Even when employers don't break the law, the process itself stacks the deck against union supporters. The employer has all the power; they control the information workers can receive, can force workers to attend anti-union meetings during work hours, can force workers to meet with supervisors who deliver anti-union messages, and can even imply that the business will close if the union wins. Union supporters' access to employees, on the other hand, is heavily restricted.
The Employee Free Choice Act would add some fairness to the system…[31]
President Barack Obama supported the bill. An original co-sponsor of the Employee Free Choice Act, Obama urged his Senate colleagues to pass the bill during a 2007 motion to proceed:
I support this bill because in order to restore a sense of shared prosperity and security, we need to help working Americans exercise their right to organize under a fair and free process and bargain for their fair share of the wealth our country creates. The current process for organizing a workplace denies too many workers the ability to do so. The Employee Free Choice Act offers to make binding an alternative process under which a majority of employees can sign up to join a union. Currently, employers can choose to accept--but are not bound by law to accept--the signed decision of a majority of workers. That choice should be left up to workers and workers alone.[32]
"I will make it the law of the land when I'm President of the United States," he told a labor federation meeting in April 2008.[33] The AFL–CIO states that, in practice, the company-controlled election process actually makes the process less democratic:
People call the current National Labor Relations Board (NLRB) election system a secret ballot election — but in fact it's not like any democratic election held anywhere else in our society. It's really a management-controlled election process because corporations have all the power. They control the information workers can receive and routinely poison the process by intimidating, harassing, coercing and even firing people who try to organize unions. No employee has free choice after being browbeaten by a supervisor to oppose the union or being told they may lose their job and livelihood if workers vote for the union."[34]
In another speech to the AFL–CIO in 2010, Obama vowed to keep fighting for the bill.[35]
Jeff Madrick, the editor of Challenge: The Magazine of Economic Affairs and a former columnist for Business Week and The New York Times, wrote that "good blue-collar jobs are disappearing rapidly as manufacturing industries decline; but many new white-collar jobs pay poorly, provide minimal health care and pension benefits, and offer little job security. There is now no privileged segment of earners in the nation except the upper 10 percent or so."
He added that "some 50 million non-unionized American workers, according to surveys, now say that they definitely or probably would join one if given the option. One of the reasons this does not happen, according to Madrick, is the failure of the federal government to protect workers trying to organize into unions. "The fines levied by the NLRB have long been meager," he notes. "Meantime, management actions against unions are supported by the nation's courts." Madrick concludes that "much can...be done" by "seriously enforcing the labor laws and imposing harsher penalties for violating them. The Employee Free Choice Act introduced by [then-] Senator Obama, among others, will be a good test."[36]
To find out how effective the current NLRB system actually is—in other words, how well it reflects workers' wishes to organize into unions and bargain contracts with management—MIT Sloan School of Management professor Thomas A. Kochan and MIT Ph.D. student John Paul Ferguson used federal data to track the progress of more than 22,000 union organizing drives between 1999 and 2005. They found that "only one in five cases that filed an [NLRB] election petition ultimately reached a first contract [between workers and management]," which they reported in a The Boston Globe article.[37] "This is despite all the cases already having shown substantial and likely majority support for representation."
They criticized the current system by asking, "How can anyone who thinks elections are a bulwark of democracy support a system in which a third of those interested in an election never get to hold one? Why would anyone put faith in a process that offers them a 1-in-5 chance of success?" Kochan and Ferguson thus called for passage of the Employee Free Choice Act along with other reforms.[38]
Opponents' views
Critics contend that additional use of card check elections will lead to overt coercion on the part of union organizers.[39] Opponents of the Employee Free Choice Act also claim that the measure would not protect employee privacy. Representative John Kline, R-Minn., has stated:
It is beyond me how one can possibly claim that a system whereby everyone—your employer, your union organizer, and your co-workers—knows exactly how you vote on the issue of unionization gives an employee 'free choice' ... It seems pretty clear to me that the only way to ensure that a worker is 'free to choose' is to ensure that there's a private ballot, so that no one knows how you voted. I cannot fathom how we were about to sit there today and debate a proposal to take away a worker's democratic right to vote in a secret-ballot election and call it 'Employee Free Choice.'[40]
The bill's opponents also oppose the mandatory arbitration of disputes involving the terms of a first contract, asserting that such a procedure could constitute an improper intrusion of government into private business affairs and harmful for competitiveness and innovation.[41] Opponents have also suggested that the arbitration mandate could lead to management resorting to offensive lockouts as a means to pressure unions and employees into accepting company proposals before the deadline for arbitration.[42]
Opponents also point to a 2001 letter to Mexican government officials, signed by 11 Democrats who subsequently voted in favor of HR 800, encouraging the "use of secret ballots in all union recognition elections" that take place in Mexico. The letter further states, "we feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose," seeming to contradict the spirit of the legislation passed by the House. Congressman George Miller was the lead signatory of the 2001 letter and the sponsor of H.R.800. However, Miller and the other signatories to the 2001 letter now contend that their demand for a secret ballot election was limited to situations where "workers seek to replace one union with another union," although the letter makes no mention of this case and instead states "all union recognition elections."[43]
The "Minority Views" section of the U.S. House Committee on Education & Labor report on the bill asserts: "H.R. 800, the deceptively-named Employee Free Choice Act, would strip [the right to a secret ballot] from every American worker. Moreover, the bill makes changes to federal labor law's scheme of penalties and remedies that are one-sided, unnecessary, and unprecedented. Finally, H.R. 800, for the first time in labor law's history, imposes a one-size-fits-all scheme of mandatory, binding interest arbitration with respect to initial contracts, on bargaining parties, again stripping American workers of the right to vote on the terms and conditions of their employment."[29] The minority (Republican) views of the committee also quoted multiple federal and Supreme Court decisions:
A secret ballot election is the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support. (Gissel Packing, 395 U.S. 575, 602 (1969)).
[I]t is beyond dispute that secret election is a more accurate reflection of the employees' true desires than a check of authorization cards collected at the behest of a union organizer. (NLRB v. Flomatic Corp., 347 F.2d 74, 78 (2d Cir. 1965)).
Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back.... (NLRB v. Village IX, Inc., 723 F.2d 1360, 1371 (7th Cir. 1983)).
In 2007, 28 Republican Senators supported an opposition bill, the Secret Ballot Protection Act,[44] which would eliminate the use of the card check procedure. In 1947 a similar proposal to eliminate the use of cards was rejected in conference in the House of Representatives.[45][46]
Former Democratic presidential nominee George McGovern released political advertisements in opposition to the bill, saying: "It's hard to believe that any politician would agree to a law denying millions of employees the right to a private vote.... Quite simply, this proposed law cannot be justified."[47] McGovern first broke with Democratic Party orthodoxy on the EFCA by opposing the proposed bill in an August 2008 editorial in The Wall Street Journal:
To my friends supporting EFCA I say this: We cannot be a party that strips working Americans of the right to a secret-ballot election. We are the party that has always defended the rights of the working class. To fail to ensure the right to vote free of intimidation and coercion from all sides would be a betrayal of what we have always championed.[48]
University of Chicago legal professor Richard Epstein also wrote a The Wall Street Journal editorial opposing the act, saying that it is unconstitutional due to restrictions on free speech.[49]
The U.S. Chamber of Commerce's Randel Johnson declared that the "coming fight in Congress over the issue" is a "firestorm bordering on Armageddon."[50] Other business interests have offered similarly strong characterizations of the proposed bill. Sheldon Adelson, a Las Vegas casino owner and real-estate developer, stated: "Radical Islam and Employee Free Choice are the 'two fundamental threats to society."[51] Mark McKinnon, a spokesman for the Workforce Fairness Institute, said businesses were "hearing about it, and are ready to riot in the street about it."[52] Forbes magazine national editor Mike Ozanian said: "The Employee Free Choice Act should be called the anti-free choice, pro-slavery bill."[53]
- Business reaction
During an October 17, 2008, conference call, Home Depot co-founder Bernie Marcus spoke against the EFCA, calling it "the demise of a civilization". He went on to say: "If a retailer has not gotten involved with this, if he has not spent money on this election, if he has not sent money to Norm Coleman and these other guys," then those retailers "should be shot; should be thrown out of their goddamn jobs."[54]
In January 2009, FedEx exercised an option to buy fifteen Boeing 777F planes and had an option to buy fifteen more. The contract between the two companies allows FedEx to cancel the second order if Congress passes the EFCA.[55] In April 2009, the Associated Builders and Contractors sent a letter to every member of Congress on behalf of 3,000 construction firms opposing the bill in any form.[56]
