Why Workers Need the Employee Free Choice Act

[Earth Bound Misfit]

http://www.americanrightsatwork.org/employee-free-choice-act/resource-library/why-workers-need-the-employee-free-choice-act.html

The Problem: Employers Silence Workers Who Attempt to Form Unions
Under the current labor law system, employers often use a combination of legal and illegal methods to silence employees who attempt to form unions and bargain for better wages and working conditions. When faced with organizing drives, 25 percent of employers fire at least one pro-union worker; 51 percent threaten to close a worksite if the union prevails; and, 91 percent force employees to attend one-on-one anti-union meetings with their supervisors.

In addition, the system designed to protect workers is severely broken. Laws and enforcement fail to sufficiently protect workers, offering penalties that are too weak to deter violations . For example, an employer found guilty of illegally firing an employee for union activity must only give backpay to that employee—minus whatever he or she earned in the interim. Many employers find the punishment for breaking the law a bargain if firing a pro-union employee scares others from supporting the union. Further, if workers successfully form a union despite such tactics, the employer is allowed to repeatedly appeal the results, which can take years. Such delays weaken union support by inviting more opportunities for employee turnover, harassment, and firings by management.

The Impact: Economic Opportunity Stolen from America's Working Families
Protecting the right to form unions is about maintaining the American middle class. It’s no coincidence that as union membership numbers fall there are growing numbers of jobs with low pay, poor benefits, and little to no security. More than half of U.S. workers—60 million—say they would join a union right now if they could. Why? They know that coming together to bargain with employers over wages, benefits, and working conditions is the best path to getting ahead. Workers who belong to unions earn 30 percent more than non-union workers, and are 63 percent more likely to have employer-provided health care. Without labor law reform, economic opportunity for America’s working families will continue to erode.

The Solution: Labor Law Reform that Gives Workers a Free Choice and a Fair Chance
A growing, bipartisan coalition of policymakers supports the Employee Free Choice Act, proposed legislation that would ensure that workers have a free choice and a fair chance to form a union. The Employee Free Choice Act would level the playing field by strengthening penalties against offending employers; requiring mediation and arbitration to help employers and employees reach a first contract in a reasonable period of time; and, permitting workers to form a union through "majority sign-up," a process in which workers present signed authorization cards as demonstration of their choice to belong to a union.

The Results: Employer/Employee Partnerships Are Working at Top U.S. Companies
The provisions of the Employee Free Choice Act mirror successful strategies already in use by industry-leading employers such as Cingular Wireless and Kaiser Permanente. These companies have replaced adversarial relationships pitting employers against workers’ unions with cooperative labor relations models that include voluntary recognition of unions through majority sign-up and fair contracts. At Cingular, for example, over 17,000 employees chose to join the Communications Workers of America in less than a year when the company and union agreed to remain neutral during the organizing drive. The nation’s top wireless carrier and Wall Street darling continues to boost profits and advance a positive labor relations model enabling its union employees to grow.

While many companies would lead us to believe that cutting jobs, slashing wages and benefits, employing temporary and cheap labor, and busting unions are necessary to remain profitable in the global economy, Cingular and others have found another way that works for their bottom lines, their employees, and their valued customers.

[Earth Bound Misfit]

1. Why Mediation & Arbitration Rules are Needed

The Employee Free Choice Act provides that either employers or employees may request mediation of the Federal Mediation and Conciliation Service (FMCS) if no agreement on a first contract has been reached after 90 days of bargaining. If the FMCS is unable to bring the parties to agreement after 30 days of mediation, the dispute must be referred to binding arbitration.

First contract mediation and arbitration is necessary because management can hinder employee free choice by refusing to bargain. Even when employees surmount the many obstacles to forming a union, management frequently denies them the benefits of collective bargaining by refusing to agree on a first contract.

According to Cornell University researcher Kate Bronfenbrenner, more than a year after voting for union representation, workers are unable to negotiate initial collective bargaining agreements 32 percent of the time.

According to labor relations scholar John Logan: "Consultants advise management on how to stall or prolong the bargaining process, almost indefinitely—'bargaining to the point of boredom,' in consultant parlance. Delays in bargaining allow more time for labor turnover, create employee dissatisfaction with the union, and prevent the signing of a contract. Without a contract, the union is unable to improve working conditions, negotiate wage increases or represent the workers effectively with grievances; and by exhausting every conceivable legal maneuver, certain firms have successfully avoided signing contracts with certified unions for several decades."

According to a 2000 report by Human Rights Watch, "The problem is especially acute in newly organized workplaces where the employer has fiercely resisted employee self-organization and resents their success."

First contract mediation and arbitration is needed because current law provides no effective remedies against management's refusal to bargain. Management understands that it can get away with suppressing employees' collective bargaining rights through bad faith or surface bargaining because there is virtually no legal deterrent.


If management and employees reach a stalemate at the bargaining table, current labor law allows management to impose working conditions unilaterally.

The National Labor Relations Act (NLRA) prohibits bad faith bargaining ("surface bargaining"), but this is an exceedingly difficult charge to prove.

No enforceable court order requiring bargaining will typically issue until three or four years after certification of the union.

The penalty for bad faith or surface bargaining is typically an order to resume bargaining.

Following an order to resume bargaining, recalcitrant employers frequently resume bad faith bargaining all over again.

First contract mediation and arbitration has been successful in Canada. Labor laws in the Canadian provinces of Manitoba, British Columbia, Ontario, Quebec, Newfoundland, Saskatchewan, and the federal jurisdiction all provide for first contract mediation and binding arbitration.

First contract arbitration laws were enacted in several provinces in the 1970s, and were strengthened in Ontario and British Columbia in the early 1990s. A substantial portion of the Canadian workforce is now covered by first contract arbitration laws.First contract arbitration has been an incentive for management and labor to bargain productively, and has improved labor-management relationships.First contract arbitration is seldom used. It has not been invoked as a standard response to bargaining deadlocks, but rather as a corrective response to employers' refusal to recognize newly organized unions and bargain a first contract.The overwhelming majority of cases are resolved through mediation or settlement between the parties.

[Earth Bound Misfit]

2. Why Stronger Penalties are Needed

Management routinely coerces employees not to choose union representation. Freedom of association—the right of employees to join a union and bargain collectively—is theoretically guaranteed by the National Labor Relations Act (NLRA), the U.S. Constitution, and several international human rights agreements. However, as Human Rights Watch concluded in a 2000 report on U.S. compliance with international human rights standards, employees’ freedom of association in the United States is routinely violated through employer coercion.

More effective remedies against employer coercion—like injunctive relief and monetary penalties—in the Employee Free Choice Act will help restore workers' freedom to form unions.

Current remedies against employer coercion are ineffective. The 2000 Human Rights Watch report concluded that protections for workers’ freedom of association are inadequate under current law, and that enforcement of current law is much too weak to deter unscrupulous employers from engaging in illegal conduct.

The NLRA’s penalties against illegal firing of union supporters are so minimal that employers treat them as a minor cost of doing business. Employers who illegally fire workers for union activity are only required to pay back wages minus what the worker has earned in the meantime—a sum that is often negligible. Moreover, the employer is usually not required to pay any compensation until years after the firing occurs.

Though virtually cost-free to employers, illegal discharges are extremely effective in thwarting employees’ efforts to form a union. Studies show that even when workers are reinstated, they are often so scarred that they do not resume organizing activities.3 Many report bad treatment from their employer, and most leave their job within a year of reinstatement.

The dramatic increase in illegal firing and discrimination against union supporters over the past decades is evidence of the ineffectiveness of current law remedies against employer coercion.

For many other violations, such as illegal threats to close the workplace or move overseas if employees opt for union representation, the only remedy is a “cease and desist” order. Employers are simply required to post a blue and white sign announcing that they have broken the law—again, usually years after the illegal threats or other illegal conduct occurred.

Other coercive employer conduct, such as one-on-one mandatory meetings with supervisors warning against the dire consequences of union representation, is perfectly legal under current law.


The Employee Free Choice Act increases penalties for illegal firing of employees. Monetary penalties must be strong enough to change employer behavior, and not simply be treated as another cost of doing business.

The Employee Free Choice Act increases the monetary penalty for illegal discrimination (including discharge) against employees for union activity. While current law provides for the award only of back pay to victims of illegal discrimination, the Employee Free Choice Act provides for the award of three times the amount of back pay.

The stronger monetary penalties apply only to illegal discrimination that occurs during organizing efforts or during the period when employees are seeking to negotiate a first contract.

The Employee Free Choice Act levels the playing field with management by giving employees equal access to injunctive relief. While current remedies for violation of worker rights are exceeding weak under the NLRA, remedies available to employers are much more effective.

Under current law, the National Labor Relations Board (NLRB)is required to seek court orders to stop unions from engaging in certain prohibited activity. If the NLRB has reasonable cause to believe a union has engaged in such activity, it must seek injunctive relief against the union in federal district court.

Under current law, employees do not have equal access to such “mandatory” injunctive relief against employers. Employees may request the NLRB to seek a court order to stop illegal employer conduct, such as the firing of union supporters, but these requests are granted only in rare circumstances.

The Employee Free Choice Act levels the playing field by giving employees access to the same kind of injunctive relief now available to management.

A court order putting fired union supporters back to work and stopping management from firing union sympathizers would be a very effective tool to prevent management from using intimidation to smother union organizing efforts.

Under the Employee Free Choice Act, the NLRB must sue for injunctive relief if it has reasonable cause to believe allegations that an employer has illegally discharged or otherwise discriminated against an employee for protected union activity, threatened to illegally discharge or otherwise discriminate against employees for protected union activity, or engaged in any other violation of the NLRA that significantly interferes with employees’ right to self-organization.

The Employee Free Choice Act’s provisions for equal access to injunctive relief are limited to violations that occur during organizing efforts or during the period when employees are seeking to negotiate a first contract.

The Employee Free Choice Act provides for civil monetary fines to deter other forms of illegal employer conduct. The Employee Free Choice Act provides for civil fines of up to $20,000 for violations of employees’ statutory right to join a union and bargain collectively that occur during organizing efforts or during the period when employees are seeking to negotiate a first contract. Such violations, for which there are often no effective remedies under current law, include the following:

Threatening to close the workplace or move overseas if employees opt to form a union.

Switching employees’ shifts, reducing their pay, demoting them, or giving them inferior work assignments to discourage unionization.

Surveilling or spying on employees who support forming a union.

Prohibiting employees from wearing union buttons.

Illegally firing employees to discourage unionization.

[Omaha Steve]

3. There are no financial penalties for guilty companies

If they illegally fire organizers, they only have to reinstate the former employee with back pay, less any earnings the employee made after the discharge. So if you have a family, you get a job in the meantime, and reduce the guilty company's penalty. Not much to stop the bastards. I know. It took 3 & 1/2 year for may case to wind through the US Courts. It went as far as the Court of Appeals in St. Louis. I was fired on June 20th, 1980. Now a similar case for an individual is 6-7 years.