For Organized Labor, The Employee Free Choice Act is Neither a Cinch, Nor a Panacea

By Steven Greenhouse

Any discussion of the Employee Free Choice Act should begin with an examination of how well (or not well) the nation’s labor law system is working. In my view, that system is inarguably broken. And even if the Employee Free Choice Act is enacted—and that's by no means a given—it is unlikely to be the cure-all that many supporters suggest.

American workers have had, at least in theory, a federally protected right to unionize since 1935 when the National Labor Relations Act was first enacted. But that right, unlike any other federally protected right, is one in which Americans face the prospect of serious punishment or retaliation whenever they seek to exercise it.

If you exercise your right to speak, to vote, to worship, to bear arms, you do not, except in rare circumstances, risk getting punished or retaliated against. But when Americans exercise their right to form a union, they frequently face retaliation, often in the form of capital punishment in the workplace, i.e. losing their job and livelihood.

The Employee Free Choice Act is the labor movement’s legislative vehicle to restore the right to form a union, to turn that right into an effective right that one need not be frightened to exercise. Organized labor clearly hopes that the act will reduce the opportunities and incentives for employers to illegally intimidate and fire workers who are trying to unionize. By pushing to give workers the right to unionize through card checks rather than secret ballot elections, the labor movement is seeking to bypass the often ugly, protracted and expensive campaigns in which employers frequently pressure—unions would say bully—employees to vote against a union. And by significantly increasing the penalties that employers would face for breaking the law while batting unionization efforts, the act, unions hope, will drastically reduce the lawbreaking by companies seeking to beat back unions.

In my book, The Big Squeeze, I seek to explain how broken the system is and how the system is broken. In the book, I tell the stories of several workers who were illegally fired for supporting a union, and I highlight the way that many companies apparently have systematic policies to single out union supporters and then intimidate them or get rid of them. I quote Jon Lehman, who worked for seventeen years as a Wal-Mart store manager in Kentucky. Lehman told me what happened one day when he called Wal-Mart’s anti-union hotline to report a flyer that he found in his store’s bathroom—it said, “This store needs a union.” Within hours Wal-Mart dispatched a corporate jet to his store, carrying an anti-union SWAT team from Arkansas. Lehman said the SWAT team asked for incriminating information about likely union supporters that would help Wal-Mart fire those workers without it appearing that those workers were being illegally discriminated against for supporting a union.

"As soon as they determine you’re pro-union, they go after you,” Lehman said. “They go after you any way they can to discredit you, to fire you. It’s almost like a neurosurgeon going after a brain tumor: We got to get that thing out before it infects the rest of the store, the rest of the body.”

Workers are not dummies. They realize the risks they face if they seek to unionize. A federal commission headed by John Dunlop, the late, great former U.S. Labor Secretary and Harvard professor, found that 79 percent of Americans believe it is “very” or “somewhat likely” that “nonunion workers will get fired if they try to organize a union.”

Workers seeking to organize have a legitimate concern. When 200 U-Haul mechanics in Nevada sought to unionize, the company illegally discharged forty-one of them for backing a union, according to a ruling by an administrative law judge with the National Labor Relations Board (NLRB). After unions sought to organize 4,100 workers at the giant Avondale shipyard outside New Orleans, an administrative law judge found that the company had illegally fired twenty-two workers for supporting a union.

In The Big Squeeze, I tell of Ernest Duval, a nursing home worker who was the rank-and-file leader of an organizing drive at a nursing home in Palm Beach, Florida. Management fired Duval, accusing him of seeking to choke a nurse—an accusation that Duval always maintained was a trumped-up effort to get rid of a smart, dogged union supporter. Only after six years of litigation, only after tens of thousands of dollars were spent on litigation costs, only after hearings before an NLRB administrative law judge and appeals before the full NLRB and the United States Court of Appeals in Washington, did the final ruling come down ordering that Duval be reinstated. The nursing home was ordered to pay Duval a mere $1,757 in back wages even though he had been terminated six years earlier. That amount was so small because federal law allows companies that illegally dismiss union supporters to subtract from the back pay owed whatever money workers earned in other jobs after they were fired. (Duval, a legal immigrant from Haiti, became a translator for Catholic Charities soon after getting fired.) For the nursing home, $1,757 was a modest price to pay to get rid of the lead organizer and effectively kill the unionization effort.

"They were supposed to punish them for that wrongdoing,” Duval told me, “but there was really no punishment.”

I was startled by the findings reached by one of Tom Kochan’s M.I.T. graduate students, John-Paul Ferguson, after analyzing years of NLRB and Federal Mediation and Conciliation Service data. Ferguson found that when unions presented authorization cards to request an election, the workers ultimately obtained union representationand a first contract only 20 percent of the time. And when employers were found to have engaged in unfair labor practices, workers ultimately obtained union representationand a first contract only 10 percent of the time. The main reason for these astonishingly low percentages is, of course, systematic and massive employer resistance to unionization.

The Employee Free Choice Act would certainly make it easier for unions to grow and to reverse decades of decline in membership and bargaining leverage (although union membership did grow in 2007 and 2008, largely because of organizing successes in the public sector). But corporate America detests the proposed legislation. Companies fear that passage of the act will reinvigorate the nation’s labor unions and enable them to add several million new members in just a few years. Little wonder that corporations are spending tens of millions of dollars to kill the legislation. Charles Craver of Georgetown University has often said that many companies believe that organized labor is on its last legs in the private sector, and their hope is to drive unions entirely out of the private sector, except in a few industries. Business realizes that passage of the Employee Free Choice Act would give private-sector unions a new lease on life.

This legislation would make it significantly easier for unions to organize, first because workers could opt to use the simpler, faster card check procedure rather than a secret ballot election, and second—and I suspect more important—because workers could unionize without having to face an intense, anti-union campaign by employers. Moreover, if the legislation is enacted, many union leaders might finally get serious about trying to organize workers after years of largely sitting on their hands and boasting they were vigorously pushing to organize workers, while they were doing no such thing.

With the current system making it so difficult to unionize workers, many labor leaders, after rationally assessing the pros and cons of undertaking organizing drives, have decided to remain on the sidelines—although they are loath to admit it. They see how expensive organizing drives are. They see how frequently unions lose. They don’t want to risk losing and having egg on their face and having members complain, “Why did you spend all that dues money on doomed organizing drives?” But if the Employee Free Choice Act passes, many union leaders might finally become aggressive about organizing because they will see that the calculus of winning has changed and that the cost of winning (per worker) has changed. As well, they will recognize that the calculus for them looking like strong, successful, forward-looking, organizing union leaders will have changed.

Trouble Ahead for the Free Choice Act
In my view the Employee Free Choice Act appears to be in trouble legislatively. I say this even though the legislation is organized labor’s No. 1 goal and even though President Obama and Vice President Biden have backed it. We all saw how difficult it was for Obama to get his stimulus package passed. We saw how hard it was to line up sixty filibuster-proof votes in the Senate, even though in this post-Keynes era it should not be terribly controversial to enact a stimulus program to help lift the economy out of its worst crisis since the Great Depression.

But if it was hard for Obama to secure sixty Senate votes for his stimulus plan, imagine how much harder it will be to line up sixty votes for the Employee Free Choice Act. Business has made clear that its No. 1 objective is blocking that legislation, at least in its current state. Corporate America is dead-set against allowing card check to largely replace secret ballot elections, and if anything, it appears even more opposed to the bill’s provisions calling for binding arbitration when a new bargaining unit has not reached a contract within 120 days. Business says it would be intolerable, indeed un-American, for an outsider, for a government arbitrator or a government-appointed arbitrator, to dictate terms of a contract: how much a company should pay its workers, whether it should provide pensions, what the details of its employee health insurance plan should be, whether or not it should have a seniority system.

With business and Republican opposition so great, it appears that there might not be sixty filibuster-proof votes for the act. The way things look as I write this in late February, perhaps just one Republican Senator will back the legislation, Arlen Specter of Pennsylvania. But at least three Democratic Senators are wavering—Dianne Feinstein of California as well as two Arkansas Democrats, Mark Pryor and Blanche Lincoln. I imagine that other Democrats may turn wobbly in the face of corporate America’s super-intense opposition.

In the legislative battle, business seems to be on the offensive and labor on the defensive. Business has placed labor in an uncomfortable position: having to defend why it wants to get rid of the sacrosanct secret ballot in unionization elections. And labor, despite months of brainstorming, has not come up with a good five-word sound bite explaining why it wants to circumvent secret ballot elections. Yes, unions say all that the act will do is give workers, rather than management, the power to decide whether to use majority signup or a secret ballot to determine whether workers want a union. While that argument may comfort those already in the labor choir, it doesn’t seem to be doing much to persuade or placate many of those exposed to corporate America’s ads denouncing “union bosses” for wanting to get rid of the secret ballot.

Judging from where things stand right now, I would be surprised if Congress were to enact the legislation with its current provisions intact. But I could be wrong. If President Obama throws his weight firmly behind the legislation and if he twists a few arms—something he doesn’t like to do—maybe it could pass intact. But my sense is that whatever passes will be a compromise, with concessions by both sides. I believe that some Republicans might agree to snap elections, meaning that a secret ballot election would have be held, say, just five days after authorization cards were turned in, thus denying management the opportunity to mount a large, intimidating campaign. A compromise might also restrict the way that business campaigns against unions. Perhaps a compromise would ban one-on-one meetings—meetings in which a manager urges an employee to vote against the union—as inherently coercive. Perhaps there would be a provision allowing union organizers to campaign on company property in some limited way—they are now banned from setting foot on company property. With such compromises, labor would have a much more appealing sound bite: “Let’s Have Fair and Fast Elections,” rather than its current sound bite, “Let’s Bypass the Secret Ballot.”

Some corporate lobbyists, acknowledging that management often breaks the law to fight unionization, indicate that they would accept harsher legislative penalties on businesses that violate the law to keep out unions. But I don’t believe that business wants to compromise on the arbitration provision—it wants to kill it. But I suspect that if that provision survives, the time frame before binding arbitration kicks in would be increased to perhaps 180 rather than 120 days.

The Organizing Challenge
Union leaders often act as if all the labor movement needs to do to reverse its decades of decline is to win passage of the Employee Free Choice Act. I emphatically disagree. In my view, the focus on that legislation has too often taken the focus off many of labor’s huge and underlying problems.

For the union movement to grow significantly, far more will be needed than enacting EFCA. To grow, unions need more dynamic leaders. Too many labor leaders are not doing enough to organize or inspire workers, especially younger workers. One problem is that virtually all national union presidents are white, and male, and many have been in office for a decade or more with little to show for it. Something should be done—either by changing union constitutions or the law—to help make sure that poorly-performing labor leaders are held accountable. If a corporate CEO does a lousy job, the company’s board kicks him out soon enough. Not so with union leaders. Perhaps there should be eight-year term limits for union leaders. Or perhaps a mandatory retirement age of 60 or 65. Or perhaps once a union president has served for eight years, he or she should be allowed to run for another four-year term only after first receiving two-thirds approval in a referendum by the membership. To stay in office more than twelve years should perhaps require three-fourths approval in a referendum.

Many union leaders seem to shrink from organizing, and the labor movement has to ask: What should be done when unions with jurisdiction over millions of workers attempt to do little organizing? Perhaps when a union just sits on its hands or is hugely unsuccessful when it seeks to organize within its jurisdiction, the AFL-CIO, Change to Win or some successor federation should be allowed to step in with their own organizers to organize workers in those jurisdictions. Or perhaps the relevant federation should have the power to assign another union some of the jurisdiction of that underperforming union to help get the job done.

Just a few decades ago, when private-sector unions were mighty, they fought to win public-sector workers the right to unionize in many states. Nowadays many public-sector unions are mighty and have sizable treasuries, while many private-sector unions are hurting and have depleted treasuries. Limited financial resources help explain why many private-sector unions are doing so little organizing. To increase organizing, it might be smart to develop some mechanism so that cash-rich public-sector unions are tithed or taxed to help finance organizing drives by hard-pressed, cash-poor private-sector unions. Public-sector unions should recognize that if union membership in the private sector continues its decades-long slide and if that slide causes private-sector wages and benefits to continue to deteriorate, making private-sector workers and their families more financially squeezed, that trend will ultimately and inevitably undercut wages and benefits for public-sector workers.

Organized labor certainly has its work cut out for it on the legislative front and the organizing front.

Steven Greenhouse is the labor and workplace reporter for The New York Times and author of The Big Squeeze: Tough Times for the American Worker (newly out in paperback from Anchor Books).