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Economic Policy institutE • 1333 H strEEt, nW•suitE 300, East toWEr•WasHington, Dc 20005•202.775.8810•WWW.EPi.org

issuE BriEF

Economic Policy institutE



issuE BriEF #249 January 29, 2009

THE EMPLOYEE FREE CHOICE ACT

Questions and Answers

By ross EisEnBrEy anD DaviD KusnEt

For more than 70 years, the nation’s labor laws have proclaimed that working Americans’ right to join a union isa undamental reedom, just like the rights to speak or worship. Indeed the reedoms to orm unions and bargain with employers ollow rom other basic American rights—reedom o association and petitioning or the redresso grievances.But, over the years, this basic American right has been eroded by employers’ intererence in the process by which working Americans once were able to decide or themselves whether to orm unions. In order to restore this right,bipartisan legislation—the Employee Free Choice Act—has been introduced by Sen. Edward Kennedy (D-Mass.) andReps. George Miller (D-Cali.) and Peter King (R-N.Y.).On March 1, 2007, a bipartisan majority o the U.S. House o Representatives passed the Employee Free Choice Act by 241-185. On June 26, 2007, the proposed law gained majority support in the U.S. Senate but was blocked by the threat o a libuster.In 2009, the newly elected Congress will consider the Employee Free Choice Act once again. Tere are strongeconomic arguments or a law that will empower working Americans to revive the economy by restoring their purchasingpower. However, this compelling case has been challenged by alse procedural points, including the claim that, by empowering working Americans to orm unions through majority sign-up, the bill would outlaw secret ballot electionsabout union representation. Tereore, these questions and answers address the procedural issues, so that the debate canreturn to the real issues o how working Americans can share in the gains o their growing productivity and how thenation can build an economic recovery on paychecks, not bubbles.

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Why do the nation’s labor lawsneed to be reormed?

Te nation’s labor laws are broken and need to be xed.Te basic labor law—the National Labor Relations Act (NLRA)—was intended to protect workers’ rights toorganize and join unions and bargain with their employ-ers or better pay, benets, and working conditions. Butit has been distorted by decades o hostile amendments,lax enorcement, and corporate tactics that bend or break the law.Originally, the NLRA encouraged workers to ormunions reely without intererence by the employers whocontrol their livelihoods. But now, elections administeredby the National Labor Relations Board (NLRB) oeroverwhelming advantages to anti-union employers. Tesecompanies can campaign on their premises, while workers who support the union cannot campaign on the worksites.During these anti-union campaigns, employers routinely intimidate, harass, coerce, and even re employees whosupport unions—and a weakened NLRB and watered-down labor laws can do little or nothing to stop them. Inthe event that workers succeed in voting to be representedby a union, companies can delay negotiations or therst union contract by challenging the results and thenreusing to bargain in good aith, and existing labor lawsare powerless to stop these stalling tactics.

How was the National LaborRelations Act intended to work?

Te National Labor Relations Act (NLRA) was originally intended to encourage the ormation o unions and theprocess o collective bargaining. Enacted in 1935, in themidst o a national economic emergency with disturbingsimilarities to the current crisis, the NLRA’s Findings andDeclaration o Policy explains:Te inequality o bargaining power be-tween employees who do not possess ullreedom o association or actual liberty o contract, and employers who areorganized in the corporate or otherorms o ownership association sub-stantially burdens and aects the low o commerce, and tends to aggravaterecurrent business depressions, by de-pressing wage rates and the purchasingpower o wage earners.

Te law created the National Labor Relations Board(NLRB) to administer a simple democratic procedureor workers to decide on their own whether to be repre-sented by a union. Workers would sign cards authorizinga union to represent them. Te NLRB would veriy thevalidity o these cards. I a majority o the employees at a workplace expressed their support, the NLRB would “cer-tiy” the union as their “exclusive representative.” I there were a legitimate question about whether the majority o workers wanted union representation, the NLRB wouldconduct an election where the employees would choosebetween the union and “no representative.”Employers were expected to stay out o this process.Because employers control their employees’ livelihoods,the NLRA’s authors believed that any eorts on their partto discourage workers rom orming unions would havethe eect o coercing the employees. Tis concern eventrumped traditional considerations o ree speech, sinceemployer involvement in the process could intimidate,not inorm, the employees. Tis view was expressed ina 1941 decision by the legendary civil libertarian, JudgeLearned Hand: “Language may serve to enlighten a hear-er ... but the light it sheds will in some degree be cloudedi the hearer has no power ... What to an outsider will beno more than the vigorous presentation o a conviction,to an employee may be the maniestation o a determina-tion which is not sae to thwart.”

How did labor law change?

Our nation’s labor laws no longer ulll their expresspurpose o protecting workers’ rights to join togetherand bargain with their employers to improve their livingstandards and working conditions.Leading business journalists recognize this reality.

Fortune

magazine senior writer Marc Gunther explains:“By law, American workers have the right to orm unionsand bargain over wages and working conditions. rying toexercise those rights is another matter entirely—workersare routinely discriminated against or supporting unions,most employers hire anti-union consultants to block

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organizing drives, and some go so ar as to close down work sites when employees vote or a union” (Gunther2006, 10-22). As

Washington Post

business columnistSteven Pearlstein writes: “Over the years [the right toorm unions and bargain collectively] has been whittledaway by legislation, poked with holes by appeals courts,and reduced to irrelevance by a well-meaning bureaucracy that has let itsel be intimidated by political and legalthuggery”(Pearlstein 2004, E01). With the passage o the at-Hartley Act in 1947,the NLRA was amended to give employers eectiveveto power over their employees’ decisions to be repre-sented by unions. Under the new rules, even i 100% o the employees sign cards declaring that they want to berepresented by a union, the employer can demand thatthe NLRB conduct an election. Te at-Hartley amend-ments also give employers the right to campaign againstthe union as long as they do not threaten employees withreprisals or their union activities or promise benets inreturn or opposing the union.Te new rules encouraged employers to conduct anti-union campaigns when their employees try to organize.By the 1980s, a $300 million-a-year industry emerged o lawyers, public relations experts, and management con-sultants who run companies’ anti-union campaigns.

How are union representationelections conducted by theNational Labor Relations Boarddierent rom elections orpublic oce?

Supervised by the NLRB but conducted at the very workplaces that employers own and manage, union rep-resentation elections are unlike any democratic electionsheld anywhere else in the United States. Quite simply,one side—the anti-union employer—has all the power.In large measure, this is because employers control em-ployees’ jobs, paychecks, and livelihoods.Te one-sidedness o these elections also results romthe special circumstances o campaigns conducted on anemployer’s premises and during the employees’ work-hours. As Proessor Gordon Laer, a political scientist atthe University o Oregon, explains, these elections allshort o our standards or ree elections (Laer 2005):

1) Free speech, with equal access to the media and the voters:

Anti-union managers can campaign withevery worker, throughout the workplace, and around-the-clock. Pro-union employees can campaign only on break time. Management can require employees toattend “captive audience” anti-union meetings. Pro-union workers can be orced to attend—but denied theopportunity to speak out. Management can post anti-union messages on the workplace’s walls and bulletinboards. But pro-union employees cannot make use o these acilities.

2) Freedom rom coercion:

Because the nation’s lawsrecognize that voters are vulnerable to economic coer-cion, it is illegal or private companies to tell their em-ployees to support particular candidates in elections orederal ofces, such as the Congress or the presidency.But, in union representation elections, supervisors—whomanage workers and can ire, promote, demote, orreassign them—can hold one-on-one meetings withtheir employees to instruct them to oppose the union.

3) Campaign fnance regulation:

In ederal elections,there are limits on how much money candidates can raiseand spend. But, in union representation elections, thereare no limits on how much money companies can spendto deeat the union, including their ees to the anti-unionlawyers and consultants.

4) imely implementation o the voters’ will:

In demo-cratic elections, the winning candidates usually take ofce just two months ater Election Day. But, with union rep-resentation elections, employers can appeal the result tove dierent levels or several years: the regional NLRBofce, an administrative law judge, the entire NLRB, aederal appeals court and the Supreme Court. Ten theemployer can engage in delaying tactics during the nego-tiations over the rst union contract.As the ormer general counsel o the NLRB, FredFeinstein, explains: “Te inherent power o employers,combined with the potential or delay in the enorcemento NLRA rights and procedures, makes union success ina traditional NLRA campaign largely dependent on em-ployer mistakes” (Shaiken 2007, 8).