In this report:
Restoring Organizing and Bargaining Rights for America's Workers: The Employee Free Choice Act
Congress can take an important step to begin reversing some of the damage that has been done to workers' rights and restoring the civil and human right of workers to form unions by passing the Employee Free Choice Act, a straightforward measure designed to ensure that when a majority of workers want to form a workplace union, they can do so free of employer intimidation and coercion. This legislation would restore and strengthen the right of workers to form unions and bargain collectively by:
Requiring employers to recognize their employees' union when a majority of workers present signed authorization cards demonstrating their choice to form a union (the "majority sign-up" process).
Majority sign-up does not deprive employers of opportunities to express their views. What it does is prevent them from routinely demanding secret ballot elections to preclude workers from achieving the representation they desire, leaving to workers the decision about the process to use.
The ideal of secret ballot elections is enormously appealing, but the current NLRB election process enshrines a vast imbalance of economic power and resources that gives employers near-unilateral advantage from start to finish. Employers and their anti-union consultants exercise this power coercively to instill fear and intimidation, undermine worker unity, sow mistrust, and defeat union formation and collective bargaining. Democracy is not served where, as Professor Shaiken notes, "Ballots may be counted honestly but the outcome ratifies the coercive, even threatening atmosphere in which the vote occurs." Workers in majority sign-up campaigns, however, are only half as likely as those in NLRB elections (23 percent vs. 46 percent) to say their employers coerced them to oppose the union, according to American Rights at Work, and only a tiny share of those signing cards, less than 5 percent, report feeling pressured to sign a card because of a union organizer's presence. Because it reduces the potential for, and impact of, employer coercion and helps level the playing field, majority sign-up is actually more democratic than secret ballot elections and better effectuates the right of workers to make their own decisions about unionization.
Majority sign-up works for workers and is good business for employers. At Cingular Wireless (now AT&T Mobility), more than 17,000 workers chose to join the Communications Workers union within the first year after the company and the union agreed to neutrality and majority sign-up. According to Cingular's Executive Vice President for Human Resources, "[M]aking choice available…results, in part, in employees who are engaged in the business and who have a passion for customers."
Boosting penalties for unlawful interference with the right to form unions, so that the cost of breaking the law is a real deterrent, rather than a small nuisance on the road to union avoidance.
Existing remedies for violations of the right to form unions are so paltry—$3,800 on average in 2003—that employers are essentially encouraged to break the law. Under the Employee Free Choice Act, workers who are victims of unfair labor practices could win triple their backpay in monetary awards and employers could be assessed fines of up to $20,000 for illegal conduct during organizing campaigns and first contract negotiations.
These provisions would align penalties for violating the fundamental right to form unions more closely with remedies available for violations of the civil rights employment statutes (back pay, compensatory and punitive damages) and wage and hour violations (liquidated damages twice the back pay and a longer statute of limitations for determining the scope of recovery).
In the Smithfield Foods case described earlier, the company responded to workers' 1997 desire for a union election by spying on, interrogating and physically assaulting them, and threatening to close the plant. Yet the only "remedy" imposed on the company was an order to read, post, and send a notice to workers, telling them it would not break the law. Last year, the NLRB ordered a new election at Smithfield—a decade after the organizing began—and in an environment desperately tainted by the company's relentless and often illegal efforts to break the workers' will to form a union.
Providing for mediation and arbitration when an employer and the workers' union are unable to reach agreement on a first contract within a reasonable period of time, thus preventing employers from engaging in bad faith, protracted negotiation with the purpose of depriving workers of the benefits of union representation, and undermining their support for the union.
Mediation and arbitration would prevent situations like Champion Homes in California, where workers formed a union in 2000; secured a 2003 administrative law judge's decision, ordering the company to bargain in good faith; and yet, still today do not have a collective bargaining agreement.
Bringing the United States closer to international labor law standards.
Our current labor law falls well short of established international standards that protect the right to organize. Employers' anti-union tactics, such as retaliating against union supporters, delaying representation elections, intimidating workers to dilute union support, and frustrating first-contract negotiations, violate fundamental tenets of international law.
The Universal Declaration of Human Rights (UDHR) of 1948, which laid the foundation for international human rights standards, states that "[e]veryone has the right to form and to join trade unions for the protection of his interests." The International Covenant on Civil and Political Rights (ICCPR), which was ratified by the United States in 1992, similarly holds that "everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests." Despite the NLRA's lofty guarantee of the right to organize, current election procedures, along with inadequate remedies for retaliation and bad faith bargaining, have left us well short of the ideal expressed in international law.
The shortcomings of United States labor law under international human rights standards have been well-documented. The International Labour Organization (ILO) Committee on Freedom of Association, an organization that examines labor relations complaints and whose jurisdiction the United States has recognized, expressly noted that remedies under the NLRA are inadequate and untimely, and thus fail to meaningfully protect the right to organize.
By implementing stronger measures to prevent employers from interfering with workers' right to choose a union and bargain collectively, the Employee Free Choice Act would align United States labor law more closely with the aspirations of international law.
Reforming our labor laws to restore the freedom to form unions, as proposed by the Employee Free Choice Act, is long overdue.
No other U.S. civil rights or worker protection standard countenances the type of employer interference in the exercise of protected rights that workers routinely endure when they try to form unions and bargain collectively. No other worker protection law or its interpretations contemplate that workers' enjoyment of the right conferred by the law is conditioned on their conquering an employer-imposed obstacle course. No other law governing the workplace presumes that workers are entitled to exercise a fundamental right—but that employers are also entitled to use their inherently unequal and vastly superior economic power to discourage, dissuade and prevent workers from exercising their rights. If the legal regime and standard operating procedures employers engage in when workers try to organize and bargain were imported to the laws governing other fundamental rights of American workers, such as the right to be free of discrimination based on color, race or gender, the civil rights movement would be marching on Washington again—and the labor movement would be with us.
Now is the time to restore the right of workers to form unions and bargain collectively. America's workers need—and have a right to enjoy—union representation in the workplace. The Leadership Conference on Civil Rights, and the collective struggle for civil and human rights, needs workers and their unions as allies in the ongoing struggle for justice. And all Americans need a strong civil rights movement and a strong labor movement, working together, to advance the cause of social and economic justice for all. The Employee Free Choice Act is an important first step for us all.
Next Section: Appendix Table A
