March 15, 2009

In Which I Explain the EFCA

EFCA, as most people now know, would replace the 70-year-old guarantee of secret ballots in union elections with unreliable "authorization cards," often signed by employees under the watchful eye of union representatives and based upon extravagant promises. The new penalties and injunctions imposed -- including substantial fines -- are designed to intimidate employers into remaining silent during union campaigns so employees will not receive full information to make an informed choice. Meanwhile, there are no new penalties for unions, despite the potential for coercion in the card-signing process.


Arbitration panels are by definition a stranger to the work place. Yet real, private agreements are products of the needs, desires, capabilities and resources of the negotiating parties who are anything but.

That's the line from the Wall Street Journal opinion page, so you know there have to be big problems with it. I count several acts of misdirection and two flat-out lies.

Streamlining Union Certification vs. Eliminating the Secret Ballot
Let's start with the basics. The Employee Free Choice Act (pdf), or EFCA, is a bill currently before the House and Senate that modifies the U.S. law put into effect by the National Labor Relations Act. It's a fairly short bill, amending a fairly short section of the U.S. Code. Specifically, it modifies four sections of the law, titled Representatives and elections, Unfair labor practices, Prevention of unfair labor practices, and Offenses and penalties.

The current law regarding the secret ballot is in section 159(c) [italics mine for emphasis]:

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees

(i) wish to be represented for collective bargaining and that their employer declines to recognize their representative
as the representative defined in subsection (a) of this section, or

(ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in subsection (a) of this section; or

(B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in subsection (a) of this section;

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.

In other words, secret ballots currently occur when the National Labor Relations Board finds that a large number of employees wish to be represented but the employers has said, "No." EFCA would add the following provisions [italics added]:

(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

(7) The Board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner described in paragraph (6). Such guidelines and procedures shall include--

(A) model collective bargaining authorization language that may be used for purposes of making the designations described in paragraph (6); and

(B) procedures to be used by the Board to establish the validity of signed authorizations designating bargaining representatives.

The new subsection (6) would eliminate the secret ballot only in the case where a majority of employees have already signed elections and only after an investigation by the Board to determine that the elections are valid, or reliable. In other words, it only eliminates the ballot when the Board is able to determine what the outcome of the election would be if it were held at that point.

Secret ballots may also still be held in cases where a substantial number, but not a majority, of employees have elected representation. Note also that there has never been any provision under this law to achieve a ballot without that substantial number of employees going publicly on record to request it. The process to acquire representation has always started with a public step. There was never a guarantee of secrecy. There was never even a guarantee of a ballot, as an employer could approve the choice of a union if, say, there were another union waiting in the wings that the employer cared even less to deal with.

In addition, there remains in Section 159 of the law a provision for a secret ballot to revoke the authority of the union to bargain for the employees:

(e) Secret ballot; limitation of elections

(1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 158 (a)(3) of this title, of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.

(2) No election shall be conducted pursuant to this subsection in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held.

As Chris Lowe points out at BlueOregon, certification without a ballot under EFCA would actually improve employees' ability to rid themselves of a union. Employees would not have to wait 12 months to vote a union out if they discovered that the promises made to them had, in fact been extravagent. He also notes that it lessens the incentive for any kind of coercion or intimidation in gathering signatures for certification.

This feature of the NLRA after EFCA, if it were passed, makes remote the scenario speculatively proposed by anti-EFCA anti-Democratic candidate campaigners: that card-check certification will be achieved in some instances (the campaign propaganda implies usually) through false majorities created by coercion of workers who would otherwise vote "no" on a secret ballot, coercion conducted by a minority of pro-union workers upon others to sign a certification petition against their true will.

In fact EFCA's relation to Section 9(e) would provide a strong incentive for workers organizing a union through card-check certification to make sure they have not just majority support, but solid support by a substantial majority, because certification with signatures of a small and ambivalent or uncommitted majority could be challenged quickly by a determined minority, creating a situation in which either legitimate persuasion could succeed, or common and widespread employer anti-union intimidation tactics during organizing drives could be brought to bear. Any cases of a fraudulent pro-union false majority obtained by unscrupulous means would be rapidly reversed.

Facilitating Initial Collective Bargaining Agreements vs. Strangers in the Workplace
The modifications to the law regarding unfair labor practices is receiving much less press, probably because employers don't want to be seen as trying to preserve their ability to be unfair. The second major amendment EFCA would make to current law add language that provide for a relatively speedy negotiation of the first contract after union representation is established.

(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:

(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section 9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.

(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.

(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.

This isn't a particularly contentious provision. Employees simply don't receive any of the benefits of unionization until a contract is negotiated and in place. Even the Wall Street Journal opinion page really only objects to it on the basis that arbitrators don't work where the contract will be enforced, as though they will be so overwhelmed with their new-found power after the passage of EFCA that they'll start making rules that neither side wants.

Strengthening Enforcement vs. Intimidating Employers
The third major section of EFCA is the most technical. It modifies both the section on preventing unfair business practices and the section on offenses and penalties. Essentially, it does three things:

  • It adds some unfair employer practices (firing, threatening to fire, or otherwise coercing employees during the period of time that employees are seeking representation) to the list of practices that will be expeditiously investigated. Under current law, only acts by the union or employees would be given priority.

  • Provides for payment to an employee of two times the back pay denied to the employee due to such discrimination.

  • Adds a maximum $20,000 civil penalty against the employer who "willfully or repeatedly commits any unfair labor practice" during this time. Under current law, the only penalty provided for is $5,000 penalty for interfering with the action of the board.

That's it. These are the penalties that the Wall Street Journal is concerned constitute an unfair burden on employers. Expeditious investigation, back pay, and fairly small penalties for willfully breaking the law. Their objections are based on the fact that penalties against unions are not likewise strengthened. Missing from their discussion is the kind of illegal behavior on the part of companies that these penalties are meant to address:

Lack of meaningful enforcement results in pervasive lawlessness
Because labor law lacks any punitive sanctions - no fines, no loss of license, no possibility of prison time - employers are free to break the law with near-total impunity. Over the period of 2000-05, there were an average of just over 19,000 charges filed per year alleging employer violations of federal labor law; of these, 40% - or 8,500 cases per year - presented sufficiently strong evidence that the Labor Board either issued a complaint or oversaw an informal settlement between the parties (NLRB complaints are the equivalent of criminal indictments, and both complaints and settlements represent cases in which the Board judges a charge to have merit). While both unions and employers violate the law, the vast majority of charges stem from employer behavior. In 2004, for example, 88.5 percent of all complaints issued by the Board, and over 90 percent of all cases tried in hearings of the full Board, addressed illegal behavior by employers.

The most egregious form of illegal behavior is the firing, suspension, or demotion of employees. On average over the past 10 years, nearly 23,000 workers per year received backpay from employers after accusing them of violating labor law - and this only includes the cases adjudicated to the point that employers were forced to provide backpay to their victims.

While the regularity with which pro-union employees suffer financial punishment is shocking, it is often only the tip of the iceberg of illegal employer behavior. Much of this employer behavior remains hidden from legal authorities. But a glimpse into such practices was provided in 2004, when a South Carolina manufacturer sued Jackson Lewis - one of the country's preeminent labor law firms - for advising illegal tactics in "a relentless and unlawful campaign to oust the union." These included spying on workers, firing union activists, organizing a bogus "employee" anti-union committee, writing supposedly employee-authored fliers calling union activists "trailer trash" and "dog woman," and supplying cash-filled envelopes to anti-union employees. What was unusual about this case is not the tactics employed, but simply that the internal tension between the company and its attorneys led to a public record of management's tactics.

The information above is from a report titled Neither Free Nor Fair: The Subversion of Democracy Under NLRB Elections. While I've talked above about what EFCA does and doesn't do, this report is one of the best recommendations for its passage that I've seen. There are specific, very large problems in the current process by which employees are able to elect union representation.

EFCA, contrary to what its critics would have you believe, is a targeted response to those problems. The provisions I've listed are all of the bill. When you hear someone tell you that this bill does something I haven't listed above, they're lying to you. Ask them to tell you what part of the bill does what they're saying it does.

Then ask yourself what they get out of the current system--a higher profit margin carved out of employee wages and benefits? The ability to continue to coerce their employees without penalty? A position of power from which they can continue to lie, to their employees and to you? There has to be a reason. They're certainly paying enough for the privilege.

If you haven't gotten enough of the lies surrounding. EFCA, Dean Baker at TPMCafe takes another one apart. This is the highly cherry-picked data that says unionization costs jobs.


Jason Thibeault said...

I may be Canadian, but as the son of a steel worker, I feel like I have a vested interest in this. The labor laws have been skewed to benefit the employers in the US for so long that everybody seems to think this is normal, and when something comes along to actually level the playing field, the usual suspects will fight back with misdirection and outright lies. Seriously, is the Washington Post good for anything, outside a catbox?

Thanks for this dissection, Stephanie. I hope this opens some eyes.

Stephanie Zvan said...

Thank you both.

Jason, I think there's also a real problem with the way that this has been reported. I wrote this up because I was having a nearly impossible time finding any resources that told me what the bill actually did. I think most reporters are confining themselves to reporting on the controversy and ignoring the bill itself.

I haven't seen any of the Post's coverage on this, but I can say that the WSJ opinion page does serve one purpose. If I ever need something to blog about, there it is.

Jason Thibeault said...

Sorry, misread. I've been seeing a lot of tripe coming from the Post over the last week that now I'm seeing it everywhere, like some kind of pattern recognition gone haywire, even where it's not mentioned. I understand the WSJ isn't much better, though.

AK said...

Great exposition.

Some comments on the general situation:

Currently there are many consulting firms available to "help"* employers combat (and I use the term apurpose) unionization. After this bill passes, I suspect you'll see a major shift of emphasis among them to "rapid decertification" processes. Of course, the playing field will still be more level, since union reps will have legitimate places in the workplace. Still, I wouldn't be surprised if the overall effect is rather small, at least with regard to big companies.

I've heard many union workers complain that many/most non-union workers get the benefit of union activities (since they often get paid scale or close to it) without having to pay the price of strikes and bargaining stand-offs. Whether or not that's fair depends on your point of view, I guess.

One of the problems regarding the whole unionization process is that unionized companies are at a disadvantage competing with non-union companies (e.g. foreign auto companies). This gives the union memberships and unionized companies an incentive to cooperate in forcing unionization on companies whose management and workers don't want it. (Whether this happens often enough to matter I don't know.)

There are many other potential problems with unionization besides higher labor costs. These include:

- Difficulties with removing incompetent or uncooperative workers,

- Opposition to changes to unfamiliar processes resulting in loss of flexibility,

- Inability to downsize rapidly, potentially leading to failure during difficult periods.

The entire labor situation in this country is changing as a result of technology. This means that many skilled or semi-skilled jobs are being eliminated, often to be replaced with unskilled jobs (and a few highly skilled). For example, consider how the supermarket checkout line has changed over the last few decades: It started with checkers who had to find and read the price on each item and type it in. Then, with UPC coding, they mostly simply had to scan each item, and click through a few windows for items that wouldn't scan. Now, customers can scan their own stuff, with one person watching up to a dozen scanning stations. I suspect that unions will have a much greater part to play in protecting unskilled laborers than they did with skilled or semi-skilled, especially while the changeover is going on.

* I have problems with the whole issue of "consultants", not just in unionization. Too often they serve as an excuse for in-house management incompetence. Often (usually in my experience) the consulting firms know more about selling their services to their victims (customers) than actually helping them.

Anonymous said...

"non-union companies (e.g. foreign auto companies)."

Yes, because unions only exist in the United States of course.


Sevesteen said...

Most of the terms seem OK to me, but the lack of a secret ballot is disturbing--I see how this is beneficial to organizing, but I don't see how it is fair. Is there some way a secret ballot fails to reflect the wishes of the workers?

Stephanie Zvan said...

Anonymous, it's true that U.S. workers building "foreign" cars are generally not unionized. However, I've already addressed some of AK's points in this thread.

Sevesteen, try the part where the employees who want to organize have already been fired by the time the vote comes, or the part where they've been fed horror stories by the company without access to any rebuttal by the union. This is not how elections are run in America. Seriously, read Neither Free Nor Fair. It's eye-opening.

Sevesteen said...

Letting a union be elected by a non-secret ballot to protect the rights of organizers is swatting a fly with a sledgehammer. The potential for abuse by union organizers is a lot worse than the abuse it protects from.

Stephanie Zvan said...

Interesting theory. Documentation? And why wouldn't employees be protected by the ability to hold an immediate decertification election?

Mike at The Big Stick said...

The new subsection (6) would eliminate the secret ballot only in the case where a majority of employees have already signed elections and only after an investigation by the Board to determine that the elections are valid, or reliable. In other words, it only eliminates the ballot when the Board is able to determine what the outcome of the election would be if it were held at that point.

So let's apply that reasoning to a mayoral election. Supporters of Candidate A flood the streets and go house to house, badgering voters in their living rooms, calling them frequently, stopping them in the parking lot, etc. Eventually they coerce enough people into signing check cards. They get a majority plus 1. Well that must mean that the public wants candidate A to be mayor, right? No need to have an election, we'll just swear him in right now.

That is what the EFCA will do. Unions will immediately shift towards intensive card check efforts. They can visit your home, stop you at the grocery store, call you frequently, have pro-union employees pressure you, etc. As someone recently wrote, imagine the union has a majority of signatures and needs one more vote. Now imagine the amount of pressure placed on the last person to sign. That process would be ripe for abuse. Not to mention, since this is no a secret process, eveyone will know who didn't support unionization. Stephanie, do you honestly believe union stewards will not have a list of who refused to sign the cards? Do you honestly believe they will be as fair to those people as they are to those that DID sign? If so, you've never worked in a union shop before and seen how things are run.

The way the system worked, the card check process was sort of like a primary. The 'voters' were given a chance to express interest in a candidate. If enough people expressed interest, a secret election was held. That is the most democratic and fair way of doing things. But now that unions are increasingly irrelevant, they are resorting to un-democratic tactics.

One last point on the notion that simplified union de-certification procedures level the playing field: Union de-certification is extremely hard and they rarely pass. The amount of counter-pressure, intimidation, etc that is put on people wishing to push a union out is extraordinary. Again, if you disagree with this, you've never worked in a unionized shop.

I would lastly ask you to explain why several of the EFCA's Democratic sponsors sent a letter to Mexico in 2001 that said:

"“We understand the secret ballot is allowed for, but not required by Mexican labor law. However, we feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose,”

...but no longer support secret elections in the U.S.[1].pdf

Stephanie Zvan said...

Mike, the way the system works now, the mayor gets to decide who has to move out of town before the election--and gets to keep the other candidate out of town as well. Really, the mayor isn't supposed to, but, well, they might have to give up their parking spot at town hall for a day if they're caught. Not much disincentive there.

If you want a fair system, and you actually think that union intimidation is a problem despite the ability for a minority to force an election to get rid of the union, work to change the law to shape the kinds of checks the board has to do to certify the legitimacy of the cards. How hard would it be to have a brief period in which employees could anonymously withdraw their cards if they wanted to?

Something needs to be done about the current system, which is grossly weighted toward the interests of employers. Doing nothing is a far worse option than passing EFCA.

Sevesteen said...

There are so many ways other than card check to make it fair, in both directions. An easy one off the top of my head would be to allow people fired during the runup to vote anyhow, or even that their cards be accepted as proxy votes in favor. The employer wouldn't have incentive to fire someone because of their potential vote, but wouldn't be stuck with people he wasn't allowed to discipline.

...and if the union wins, they can file a grievance to get the fired person's job back.

Stephanie Zvan said...

Yet no one is proposing legislation like that. One would almost think that the people arguing against EFCA were more interested in the status quo than in the worker welfare they keep trumpeting as they bash EFCA.

There are also several other very important provisions of EFCA.

Mike at The Big Stick said...


Under the current system the employers don't know who has signed cards if a unionization effort fails. No retribution. Likewise, most employers know about coercive union tactics and are pretty forgiving.

One other point to mention, once someone signs a card, their signature remains on file forever. The union can count that card towards unionization 10 years after it was signed if the person is still with the company.

At the end of the day, if unions were still as important as they want to be, they would be flourishing. The truth is that there is so much federal legislation protecting workers now that the unions can really only negotiate contracts...and inthe last 20 years most have not delivered on their promises. Yet they are still around, reflecting how hard it is to give them the boot.

Stephanie Zvan said...

Mike, that's a lovely fantasy land you live in. If you made it big enough for everyone, there'd be no need for EFCA. Try reading Neither Free Nor Fair. I linked to it for a reason.

Mike at The Big Stick said...

Yeah, I read that Stephanie. It's a very detailed account of some employers using shady tactics to keep unions out. And of course I could rebutt with dozens (hundreds) of examples of unions doing the same or worse. And then you would do the same, etc, etc.

Let's assume you are right and that the employers are the evil-doers in this scenario. If there is no vote then each card signed is that employee publically going on record as being pro-union. If you are right, then isn't this law making employees potential targets for retribution if the union effort fails?

If I'm right, then the reverse happens if the union gets in. Anti-union employees would be treated like the enemy.

The point is that both sides do some lousy things to try and get their way. Who is stuck in the middle? The employees. So why not give them an anonymous opportunity to state their opinion, free from intimidation, free from the fear of retribution and put the process to an end?

There is a reason that democracy is built on the secret ballot. It's what protects us from the big guys. Unions are so desperate for new members that they are willing to trade that away for a leg-up in the organized labor battle. I'm sure there is some Thomas Jefferson quote about trading away our liberties for security which would sort of fit here.

Trading away the secret ballot is a sign of desperation...not concern for workers.

Here's a fair compromise: Instead of a majority plus one make it 1/3 plus one and then hold a secret vote. The unions get a better chance at unionization and the employees (and the employer0 are protected by the secret ballot.