The EFCA: What the Fuss is all about

Arindam Mandal

The proposed Employee Free Choice Act (EFCA) is considered as an important milestones for the trade union movement in the U.S. Though the bill has been passed in the U.S. House of Representatives with an overwhelming majority of 241 to 185 votes, its fate in the Senate is still uncertain. Even if it is passed in the Senate, it has been mentioned time and again that President George Bush will veto it.

If the EFCA becomes a law, it will be a landmark victory for the unionized labor in the U.S. because it will allow workers to form unions by simple card check rather than going through the time consuming electoral process. Under the current law, the process of unionization is rather cumbersome. The typical way in which workers show interest in unionization is by signing the union authorization cards; and these state that each worker authorizes the union to represent them for the purpose of collective bargaining. The union can petition the NLRB for an election once 30 percent of the members of a bargaining unit have signed the cards. The board notifies the employer. At this point, the employer is free to recognize the union or consent to an election. If employer consents to an election, then the board will set a date for election. In the meantime, the employer is free to try vigorously to get the workers to vote against the union. This whole process of going through election is a time consuming process and it gives ample time to the employers to go for union busting techniques which includes both semi-legal and illegal tactics.

According to the proposed EFCA, it would enable working people to bargain for better wages, benefits and working conditions by restoring workers’ freedom to choose for themselves whether to join a union. It would:

* Establish stronger penalties for violation of employee rights when workers seek to form a union and during first-contract negotiations.
* Provide mediation and arbitration for first-contract disputes.
* Allow employees to form unions by signing cards authorizing union representation.

Under the proposed EFCA bill, if it becomes law, the Act would require the NLRB to certify a union as the exclusive representative of employees without an election where “a majority of the employees in a unit appropriate for bargaining has signed valid authorizations.” This is where the major criticism against the bill has been lodged. According to the so-called neoliberal proponents of freedom and choice, getting away with secret ballot will mean taking away the voting rights of the workers. They argue that changing the current system of voting to card checking will mean possibilities of foul treatment of the workers who are not supportive of the union by the union. Definitely, lots of hypothetical situations can be created, but perhaps the proponents of this line of view are incompetent to grasp the fact that formation of unions is not an individual decision, rather it is a collective decision based upon a strong sense of solidarity. If this is the case, it is very unlikely that the union will threaten or coerce the anti-union employees. In reality facts are other way round. Often employers resort to anti-union practices to stop the process of unionization. These facts can be made clearer by the study carried out by Cornell University scholar Kate Bronfenbrenner. She found that

* Ninety-two percent of private-sector employers, when faced with employees who want to join together in a union, force employees to attend closed-door meetings to hear anti-union propaganda; 80 percent require supervisors to attend training sessions on attacking unions; and 78 percent require that supervisors deliver anti-union messages to workers they oversee.
* Seventy-five percent hire outside consultants to run anti-union campaigns, often based on mass psychology and distorting the law.
* Half of the employers threaten to shut down partially or totally if employees join together in a union.
* In 25 percent of organizing campaigns, private-sector employers illegally fire workers because they want to form a union.
* Even after workers successfully form a union, in one-third of the instances, employers do not negotiate a contract.


Given the above scenarios, it seems clear that the arguments for opposing the EFCA based upon delimiting freedom and choice are not only misplaced, but also mischievous. The Act will ensure that the workers can express their choice more easily under the protection of law. Not only this, the Act will also ensure proper penalties against any violation of the employee rights when workers seek to form a union and during first-contract negotiations. No doubt the EFCA will go a long way in ensuring these desirable changes.

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