Crib Sheet: The Employee Free Choice Act

Why Card Check Neutrality is good for workers.

By Matt Singer

Are secret ballots the fairest way to make democratic decisions?

That’s the question at the heart of the arguments over the Employee Free Choice Act, a measure to bring American labor law into the 21st century.

While most of us would respond with a gut reaction that secret ballots are fair—a reaction that opponents of labor unions rely on—a better analogy might go like this. Are secret ballot elections—with timelines manipulated by incumbents, with threats of nuclear retaliation against any city that had the audacity to vote against Dear Leader—really the best way to make democratic decisions?

Under current American labor law, workers choose whether to unionize through elections rife with threats from management. Fortunately, that may change soon. The U.S. House already passed the Employee Free Choice Act. The Senate may take it up soon.

So what’s the skinny on these labor law changes?

First, let’s look at the current (exceedingly painful) process for establishing a union:

1. Workers must collect cards from at least 30 percent of employees who work in the potential bargaining unit (the group of workers that the card-collecting employees are trying to unionize).
2. When the cards are submitted to the National Labor Relations Board, the Board checks them for authenticity. The company is allowed to challenge the signatures for a variety of reasons.
3. Once the cards are deemed sufficient, the NLRB works with both the workers and the employer to schedule an election. During this step, the employer is free to challenge the scope of the bargaining unit for a variety of reasons under a number of vague ad-hoc rulings.
4. The period between the date the election is set and the day of the actual election is usually marked by a number of festivities. Pro-union workers play the “try to grab workers coming and going from the workplace for a handful of time while avoiding restrictions on union speech at the workplace and anti-fraternization rules” game. Meanwhile, management often tries its hand at a number of different games, including “illegally firing union supporters to make an example,” “hinting at the future closing of the workplace, resulting in layoffs,” “mandatory meetings explaining how awful unions are,” “give preferential treatment to union opponents,” and “give awful treatment to union supporters.” The best part of the management games? While some of them are illegal, an allegation that management has broken the law delays the vote on unionizing and carries little-to-no danger of real penalties. Score!
5. The election is actually held, votes are counted, and the results are certified. At this point, a union will be recognized or not recognized.
6. Legal challenges, bargaining delays, and foot-dragging. Of course, in a bureaucratic nightmare, nothing ever really ends. Even after a vote to unionize, companies can drag on the process for months, refusing to negotiate, bringing challenges, and making sure that negotiations go nowhere.
7. They sic Jack Bauer and Chuck Norris on your ass. Just for fun.

Pretty sweet process, huh? Hell yeah—if you’re a CEO. If you’re Joe Six Pack, it sounds like trying to join that union will be a real pain in the ass—might as well keep hustling for $8.00 an hour and no health care.

What Does the Employee Free Choice Act Do?

Under the EFCA, the employer will recognize a union if a majority of workers sign cards stating their desire to form one (a process known as a “card check”). If the employer refuses to recognize the union, the newly formed union and the workers go to a binding arbitration process.

The EFCA has at its heart a really radical idea: Workers are qualified to decide by themselves whether they want to be represented by a union.

Now, the union-busting machine has two ways of responding to the EFCA—the arguments they make in public and the arguments they make in private. In public, they’ll say that “secret ballots” are preferable to the card-check method when it comes to democratic decision-making. In private, they’ll admit that they need the current process if they have any hope of retaliating against workers.

In this regard, too, the data is clear:

Card Check Results in Less Intimidation of Employees. Academic researchers surveyed workers who had gone through either card-check processes or NLRB elections and asked them whether they had been intimidated by either the union or by their employer during the process. Here’s what they were told:

In other words, while reports of union intimidation were more frequent in card-check campaigns than in NLRB elections, workers reported more intimidation by employers in both elections and card-check campaigns. Union intimidation of workers, in other words, isn’t the problem.

Still, there’s no doubt that the far right will pull out all the stops to defeat any legislation that makes it easier for workers to organize unions, since union workers earn better wages and benefits. The Chamber of Commerce has already pledged to fight any change to current union law—whether it is to require recognition of the card check process or simply to require that employers submit to arbitration when dealing with a union. Stiffer penalties for illegal union-busting tactics are also unlikely if the big corporations have their way.

But if Congress does right by workers you can expect two things: fewer threats and more unions.

Matt Singer works for Forward Montana, a nonprofit dedicated to getting young people more involved in politics. Skyrocketing personal debt and a glut of McJobs make him think that a new golden era for unions is just about due in America.

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