So You Want to Organize a Union…
Earlier this week, I had the opportunity to make the case for the Employee Free Choice Act in the pages of the Atlanta Journal-Constitution. I described the critical role unions played - and continue to play - in creating the American middle class and explained how weakened regulations protecting the right to organize had allowed employers to launch ever nastier campaigns against their own employees. The stimulus plan will help create jobs, I argued, but it won't do much for job quality. It is only when employees have the freedom to organize unions that they can improve their own job quality, lifting themselves into the middle class.
Providing an opposing viewpoint was Mac Irvin, a lawyer at an Atlanta firm advising employers in "union avoidance" tactics. EFCA, he argued, "will take away the right of employees to determine their own future by secret ballot." How could I overlook such a critical point in my own essay?
Because it's not true.
The Employee Free Choice Act takes away no employee rights to a union election. Under current law, many decisions about union representation are already made without a secret ballot vote, using the same majority sign-up process working people use to organize throughout most of the world, as well as under state labor law in many parts of the U.S. Under this process, employers must recognize the union when a majority of workers sign cards saying they want to unionize. Academic research has failed to detect any sign of the union bullying Mr. Irvin insists is rife in majority sign up cases.
The key here is that employers currently have the power to decide whether to call for an election or recognize the results of majority sign up. Under the Employee Free Choice Act, workers themselves would decide which method to use. What EFCA really puts a stop to is employer manipulation of the system: the increasingly common illegal firings, threats, surveillance and harassment that are a well-documented part of the current climate for employees trying to unionize. The situation is so bad, it has been denounced by international human rights organizations.
This is far from the free and fair democratic election that Irvin describes. In a study by political scientist Gordon Lafer, the current union election process was found lacking on several critical democratic election standards. For example, democratic standards presume freedom of speech, yet Dr. Lafer notes that in U.S. union elections, "employees are restricted from openly expressing their opinions. Employers are allowed to enforce a total ban on employees discussing the proposed union outside of the break room. Yet employers enjoy unfettered communication, subjecting employees to mandatory staff meetings and one-on-one meetings with supervisors, often with the intent of intimidating those suspected of supporting union formation. Labor law provides no equal opportunities for pro-union workers to respond or present alternative viewpoints." This shortcoming is no doubt familiar to Mr. Irvin, as his own firm specializes in "train[ing] managers and supervisors... [in] communicating to employees the harm that union organizing brings" in cases where pro-union employees have no comparable access.
Democratic elections also require timely implementation of the voters' will through a binding system of regular elections and fixed terms of office. Yet Dr. Lafer finds that in elections for union representation: "workers can face infinite delays in the implementation of election results. Often times these lengthy delays are a result of employers taking full advantage of permissive election guidelines. These guidelines not only allow the appeals process to drag on for years, but mandate that the workplace be governed as if employees voted against organizing for the duration of the appeals process."
To get a sense of what the process really looks like for people going to work everyday, read the wrenching testimony of Smithfield Foods employee Keith Ludlum. Ludlum started organizing for a union at Smithfield's Tar Heel, North Carolina plant in 1993 and was illegally fired for his union organizing activity in 1994. The National Labor Relations Board found that union elections at his plant in 1994 and again in 1997 were tainted by massive employer violations of labor law, including Ludlum's illegal firing. After numerous appeals, the company settled in 2006, hiring Ludlum back and vowing to hold another election. In the meantime, however, the company took advantage of immigration enforcement efforts to continue spreading fear and try to drive a wedge between workers. It didn't work. In December 2008, Smithfield employees got their union after 15 years. Now all they need is a contract. Does that sound like a process we should preserve?