During the first session of this Congress, the House of Representatives voted 241-185 to pass the Employee Free Choice Act, CWA’s top legislative priority.
The vote occurred on March 1, 2007. Three months later, on June 26, 2007, a majority of the Senate, 51 Senators, voted to consider this bill for debate and vote but the bill died due to the threat of a filibuster led by anti-labor lawmakers. In the Senate, sixty (60) votes are required to stop “extended debate” and to allow a vote on the merits of legislation.
Although this Congress won’t reconsider the Employee Free Choice Act before it adjourns, the legislation remains CWA’s flagship issue for the next Congress that will convene in January, 2009.
A report issued by the National Labor Relations Board (NLRB) underscores the need for Congress to enact legislation to ensure that workers can exercise the basic human right to organize freely and bargain collectively.
According to the report, 31,000 workers were disciplined or fired in 2005 for union activity. Presently, twenty-five (25) percent of employers fire at least one worker for supporting a union during organizing campaigns. Seventy-five (75) percent of employers hire union busting “consultants” to help defeat organizing drives. Ninety-two (92) percent of employers compel their workforce to attend captive audience meetings to hear anti-union propaganda. In one-third of all representation elections won by unions, workers still do not have a collective bargaining agreement two years after the election.
The current condition of labor law puts employers in control of what should be workers’ concerns. Even when a large majority of workers indicate clearly that they want to join a union, employers can compel a government-run vote.
In the weeks it takes to set up the election, employers can carry out a poisonous campaign that includes intimidating, coercing and even firing workers who want to join a union.
During the election campaign, employers have unlimited access to harangue workers against voting for the union, while union representatives are relegated to passing out flyers to workers as they speed out of their employer’s parking lot at the end of the workday. Union representatives are often forced to ask time-stretched workers to attend evening or weekend meetings.
Most disturbing, a poll conducted in 2006 by Peter Hart Research Associates showed that 58 percent of workers would vote for union representation, if given the opportunity. This means that there are 60 million workers who want to join labor organizations.
Proposed Remedies
The Employee Free Choice Act contains three components aimed at strengthening the rights of workers who want union representation.
First, the legislation provides for certification of a union if the NLRB finds that a majority of workers have signed forms designating the union as their collective bargaining representative. This method of union certification is known as card check.
The card-check procedure has been legal throughout the life of the National Labor Relations Act (NLRA). But under existing law, management can undermine card check by refusing to recognize a union as the bargaining agent even when 100 percent of the workers have signed authorization forms. Instead, management can demand an NLRB election that enables bosses to fear monger their workers. Requiring union certification when a majority of workers have signed recognition cards would prevent this abuse.
Card-check recognition has been part of Canada’s national labor law for many years and has worked successfully. Closer to home, CWA used the card-check procedure to attain recognition as the bargaining agent for workers employed by Cingular Wireless.
Second, the bill mandates first contract mediation and arbitration. The bill specifies that if no agreement on a first contract has been reached after 90 days of bargaining, then either the workers or the employer can request the intervention of the Federal Mediation and Conciliation Service (FMCS). If the FMCS is unable to bring the parties to an agreement after 30 days of mediation, then the dispute may be referred to binding arbitration and the results of the arbitration will be binding on the parties for two years.
First contract mediation and arbitration are essential because current law provides no effective remedy against management’s refusal to bargain to reach an agreement. Management understands that it can get away with stifling the collective bargaining of workers through engaging in bad faith or surface bargaining because there is virtually no legal deterrent.
Third, the Employee Free Choice Act sets forth meaningful remedies against employers when workers are attempting to organize or are seeking a first contract. The bill increases the monetary penalty for illegal discrimination (including discharge) against workers when they are exercising their legal right to engage in union activity. Current law provides for the award only of back pay to victims of illegal discrimination. By contrast, the bill provides for an award of three times the amount of back pay for illegal activity that occurs during efforts by workers to organize or when they are seeking to negotiate a first contract.
The legislation levels the playing field with management by giving workers equal access to injunctive relief. Under existing law, workers do not have equal access to such “mandatory” injunctive relief against employers. Workers can ask the NLRB to seek a court order to stop illegal conduct by employers, but these requests are rarely granted. A court order putting fired union supporters back to work and preventing management from firing union sympathizers would be an effective tool for stopping management from using intimidation to stifle union organizing efforts.
Under the bill, the NLRB must sue for injunctive relief if it has reasonable cause to believe that an employer has illegally discharged or otherwise discriminated against a worker for protected union activity or if the employer has engaged in any other violation of the National Labor Relations Act that interferes significantly with the right of workers to organize.
The legislation provides for penalties up to $20,000 per violation against employers found to have willfully or repeatedly violated workers’ rights during an organizing campaign or pursuit of a first contract.
Workers are entitled to decide whether they want union representation without experiencing intimidation, indoctrination, or misinformation.
For too long, the National Labor Relations Act has stood as a broken promise to America’s workers. Enactment of the Employee Free Choice Act would help restore our nation’s system of employer-employee relations so that America’s basic labor law protects the rights of workers rather than shielding the illegal activities of employers.
For further information, contact
Lou Gerber, Legislative Director
(202) 434-1315
lgerber@cwa-union.org
