Employee Free Choice Act Lawyer & Attorney : Fox Rothschild Law Firm : Brian A. Caufield

Article Prepared by Brian Caufield and Darren Rumack

The debate over the Employee Free Choice Act (“EFCA”) has heated up once again, as the Senate Appropriations Committee held a hearing addressing complaints over the NLRB, and the potential passage of EFCA.

The debate broke down into two camps: on one side, those who oppose the drastic overhaul that the EFCA would bring to private sector labor relations. This group includes past and present NLRB board members, who favor more incremental reforms at this stage.

Current NLRB chairman, Peter Schaumber came out against this complete overhaul of the system, stating that both the Board, and the NLRA have “proven to be remarkably flexible and adaptive over many years.” 

On the other hand, a vocal contingent of EFCA supporters also attended the hearing, arguing that employers use scare tactics to pressure employees into rejecting unionization.

Perhaps the most memorable quote of the hearing came from Alan Hart, the managing editor of UE News, which is the newsletter for the United Electrical, Radio and Machine Workers of America. Hart compared the unionization process to the notorious Abu Ghraib prison, stating that “employees are taken into rooms for interrogations and intimidation, this is almost Abu Ghraib-like procedures we’re seeing these days.”

Union histrionics aside, it is clear that after a brief lull over the winter months, this contentious piece of legislation is going to be in the news once again. 

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We have been a bit quiet with this blog lately and mainly it is because it is the quiet before the storm.  What do we mean by that?  Well, the Employee Free Choice Act (EFCA) s stalled in Congress and while unions would love to focus on this piece of legislation right now, there is something even more pressing between now and November--ensuring that the Democrats secure the White House and both Houses of Congress.  Why?  This is the one sure way to see the EFCA passed. 

It should come as no surprise to anyone that unions are an essential part of the democratic party's grassroots campaigning.  Unions provde manpower to staff the phonebanks, walk the neighborhoods and get voters to the polls.  It can be argued that they are the lifeblood of the democratic party and avid supporters of democratic candidates.  To return the favor for all the assistance that unions provide the democratic party, and to hold on to the unions' support and money, it is likely that a democratic President and democratically controlled House and Senate will yield passage of the EFCA.

So, the unions are in a vetting process right now to see whether Clinton or Obama will be the one to acede to the White House and bring them their coveted prize--the EFCA.  Recently, Service Employees International Union (SEIU), a large service industry union, backed Obama.  Earlier in January, UNITE HERE, another large union comprised mailny of textile and service workers, also backed Obama.  Both SEIU and UNITE HERE seem to favor card-check recognitions over National Labor Relations Board (NLRB) elections.  Thier endorsement of Obama is a ringing endorsement that, in thier eyes, he will be the one to most effectively get the EFCA passed.

As we get closer to the general election we will begin to see the issues more narrowly defined.  One such issue will be the EFCA.  The economy is likely to be on the forefront and with that will come a dialogue on the EFCA.  Once this dialogue opens, expect the storm to start brewing.

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The Pennsylvania Democratic State Committee has come out firmly in support of labor unions when they voted to endorse the Employee Free Choice Act. This should not comes as a surprise to anyone following the 2008 election campaign given that every Democrat Presidential Candidate has also issued their blanket support for the EFCA. However, the lack of internal debate over the EFCA is disconcerting.

As this blog has discussed on numerous occasions, the EFCA would dramatically overhaul private sector labor relations in this country on a scale not seen since the passage of the National Labor Relations Act itself. 

The fact that there has been little internal discussion by the Democrats over the EFCA’s potential effects is a prime example of the power of union endorsements for elections overriding the need for serious discussion over the EFCA’s ramifications. Should the EFCA ever be passed into law, it is unlikely that any serious debate will accompany the legislation.    

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Although the Employee Free Choice Act has rightfully garnered much attention for the limits it would place on employers’ abilities to fight union organizing campaigns, organized labor is making a similar push on the state level to restrict employer options during attempts to organize the workplace. 

This blog has posted previous entries regarding state versions of the EFCA here and here, and now comes word of a new piece of legislation in the State of Washington that seeks to limit workplace communications.   The bill would ban employer communications about “matters directly related to candidates, election officials, ballot propositions, legislation, election campaigns, political parties, and political, social, community, and labor or other mutual aid organizations.” This could well limit an employer’s ability to make its case to workers during an organizing campaign.

Its hard to blame organized labor for seeking these changes that would make unionization an easier process for workers. Given the decline of the organized labor movement in this country in recent decades, unions are certainly not the indispensable organization in workers’ lives they once were. 

Really though, while unions have every right to make their lives earlier and to increase their membership, they need to stop hiding behind condescending phrases like “protecting employee’s free choice” or “protecting workplace privacy.” These are power grabs—pure and simple, and has nothing to do with improving the lots of workers in this country.

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On December 13, House and Senate Democrats held a joint subcommittee hearing, criticizing the National Labor Relations Board for a spate of decisions that the Democrats claim undermine workers’ rights to unionize. 

The Democrats voiced their concern over a spate of cases the Board has issued in recent months, including the Dana Corp. decision which has been discussed extensively on this blog.

Sen. Edward Kennedy stated that the Board “is no longer fulfilling its responsibility to protect the voice of American workers.” Kennedy also claimed that the Board has engaged in “an unprecedented rollback” in the protection of workers rights during the past five years.

Given the appointment process of Board members, the NLRB is an inherently political organization, and can be an easy political target. At the same time, the Board is charged with interpreting and ensuring compliance with the NLRA. Recently, Congress and unions seem more preoccupied with blaming the Board for widespread union woes in the country, when in fact, unions should be looking inward to examine their own shortcomings in appealing to workers instead.    

Although this hearing was likely a one-time event, expect to hear more about recent Board rulings affecting union elections, especially as the Presidential Primaries gear up in the next few weeks. 

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AFL-CIO President John Sweeney lambasted President Bush at the first-ever global summit on organizing at the National Labor College in Silver Spring, Maryland.  Sweeney stated that:

President Bush and his cronies have done all they can to destroy workers’ rights around the world. The truth is until we are able to restore basic workers’ rights in the United States, the worldwide decline will not stop. 

Sweeney’s solution: the passage of the Employee Free Choice Act . Apparently, in the AFL-CIO President’s mind, a restoration of workers’ rights involves the removal of the very basic right to a secret ballot election. 

The AFL-CIO seems unable to recognize that workers’ rights are not the same thing as union organizing successes. Perhaps their lack of concern for workers’ free choice is one of the major reasons that private sector unionization raters are at an all time low. 

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AFL-CIO National Organizing Director Steward Acuff is railing against the hijacking of the National Labor Relations Board by “by the corrupt corporate and radical right-wing forces,” supposedly backed by President Bush in a bid to deny the election of ‘progressive’ politicians. 

Acuff’s bone of contention is 61 decision handed down by the Board this fall that he claims “further restrict and weaken already shamefully weak and ineffective workers rights in America.”

Acuff seems to object mainly against the Board’s decision in Dana Corp., which as discussed in previous posts, offers a firm rebuke by the Board against the EFCA, and its would-be allowance of card-check recognition for unions.

It is articles like this that show how out of touch union organizers are with rank-and-file workers. Contrary to Acuff’s belief that secret ballot elections deny workers’ their right to unionize, elections protect a workers' free choice, by allowing them to make a selection by secret ballot free from any immediate pressure or coercion.

Apparently, the AFL-CIO is unable to distinguish between workers rejecting unionization on their own accord with some vast unidentified conspiracy to deny workers their right to unionize.  

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As we have stated in previous posts, the EFCA would dramatically overhaul the National Labor Relations Act, specifically by allowing for easier routes to unionization through card-check procedures and by foregoing secret ballot elections.

Should the EFCA be passed, this poses an interesting question: what effect will this have on right-to-work states?

Right to work laws, which are currently in effect in 22 states, prohibit unions from making membership in the union or payment of union dues a condition of employment, either before or after hire.

Generally speaking, right-to-work states are composed mainly of southern states. These states have constantly sought more and more manufacturing jobs from northeastern states, selling companies on their lower unionization rates and lower cost of living. This strategy has paid off as more and more of these jobs have migrated south in recent decades, paving the way for increased economic strength of southern states.

As some of our readers point out, the EFCA, as a federal law, would not change right-to-work laws in those states; however it begs the question, should the EFCA lead to increased unionization rates as expected, will this lead to increased unionization rates in right-to-work states?

This is a situation worth watching, because the EFCA could have a dramatic ripple effect throughout much of the country.

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The Employee Free Choice Act might currently be stalled in Congress, but that has not stopped some legislators down in Rocky Top to send a request to their Senators to vote for the EFCA. Nashville Metro Council is planning on sending a request to Tennessee Senators Lamar Alexander and Bob Corker to vote for the Employee Fee Choice Act.

Ironically, Tennessee as a right-to-work state has benefited tremendously from the low unionization rate in the state. The passage of the EFCA, which would make it far easier for workers to form unions would likely have a detrimental effect on the state's economic growth.

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