Employee Free Choice Act: Good for Everyone

With the election of a new president, there naturally is a lot of talk about what legislation we might expect from the Obama administration and substantial Democratic majority in Congress.  High on everyone’s list is the Employee Free Choice Act — a bill that would make it easier for workers to form and join unions.  But perhaps you are not convinced that unions are the solution to making things better for workers, either in your workplace or any workplace.  Guess what:  you should support the Employee Free Choice Act anyway, and here’s why:

The specter of EFCA passage has a lot of employers — and their advisors — running scared.  Right now, employers who strongly oppose having unions in their workplace can hire specialists — let’s call them “unionbusters,” since that’s what they are — to use all legal and often illegal means to discourage workers from union organizing activity.  Guest blogger Art Levine, in an article published last year called Unionbusting Confidential, talked about the strategies he learned about while attending one of the many seminars that law firms sponsor for employers who want to remain union-free:

What if we felt like saying a lot of anti-union stuff to our workers? [The presenter Michael] Lotito introduced a segment called “You Can Say It.” Could we tell our workers, for instance, that a union had held strike at a nearby facility only to find that all the strikers had been replaced—and that the same could happen to the employees here? Sure, said Lotito. “It’s lawful.” He added, “What happens if this statement is a lie? They didn’t have another strike, there were no replacements? It’s still lawful: The labor board doesn’t really care if people are lying.”

(See Unionbusting Confidential.) (Note: Obama’s appointments to the labor board (NLRB) might care a little more about employers’ lies than those appointed by George W. Bush, but I digress.)

However, some of the tactics unionbusters use to discourage union organizing simply aren’t going to fly under EFCA.  Refusing to bargain is one of the tactics described by Levine, where employers say “I’m not inclined to agree to that proposal at this time” when they do not intend to agree to any proposal at any time.  This strategy will be countered by a provision that allows either side to request mediation after 90 days with the sides at an impasse.  (See Why Mediation and Arbitration Rules are Needed.)

One of the most egregious strategies, firing workers for union organizing, will also be penalized more heavily.  Levine writes that employers are being advised,

[Firing workers] was possible to do, said [Michael Stief of Jackson Lewis], as long as you were careful to do so for other reasons. “Union sympathizers aren’t entitled to any more protection than other workers,” he explained. But the firing could not be linked to their union activity.

One survey estimates that employees are fired in up to 25% of organizing efforts.  (See Why Stronger Penalties are Needed.)  EFCA increases the damages due to fired workers to three times their back pay, and allows employees to go to court to enjoin their employers from taking punitive actions.

But what really makes EFCA a win-win for everyone?  It’s that with the real threat of unionization, employers are going to be forced to make their workplaces better — to convince their employees that they don’t need unions. As one management lawyer recently pointed out, apparently with no sense of irony,

Making nonunion workplaces better for employees could be the real unintended consequence of the Employee Free Choice Act.

(See How Employers Can Mitigate ‘Card Check.’) (Hat tip to Matt Stoller of Open Left.)

This lawyer is encouraging employers to develop programs now “that will be better than
anything a union could provide, including steps to increase employee involvement and to allow peer resolution of disputes.”  Steps to increase employee involvement?  Allowing peer resolution of disputes?  All at a level better than unions? Those things all sound pretty good to me, and just maybe, they weren’t merely an “unintended consequence.”

According to Levine, unionbusters are already advising their employers to “institute an open-door policy with employees, encouraging them to air any grievances or concerns fully.”  Because it’s the right thing to do?  Not really — it’s so they can “sniff out whether there was unionization afoot.”  But what if they had to do it for real?

Wouldn’t it be wonderful if employers and unions were finally engaged in a race to the top, instead of to the bottom?  If the realities of competition made both the employer and the union be at the top of their games when making working conditions more hospitable? If workers finally had the upper hand when it comes to a more democratic and fair workplace?

Let’s put the unionbusters to work actually trying to make the workplace better.  If they really believe that unions are bad for business, then they’re going to have to convince their employees that they’re genuinely willing to go the extra mile to make things better for their workers — farther than a union is likely to go.  If they can’t make that case, then employees will finally have a real shot at forming a union and empowering themselves that way.

Either way, with EFCA’s passage, we have an unprecedented opportunity to get rid of some of the imbalances that currently exist.  Because in this economic climate, with employers already laying off employees left and right, workers are otherwise going to be even more powerless, and the unionbusters even more empowered to ensure that employers don’t feel the sting like their workers do.

One Million Signatures for the Employee Free Choice Act:  add your signature today!

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.