Leveling the Playing Field for American Workers:
The Employee Free Choice Act
By SENATOR EDWARD M. KENNEDY

 Working families are being squeezed in every direction by the Bush economy. The Administration desperately tries to paint a rosy picture of economic growth, but the rhetoric fails to match the reality of the lives of most Americans. An economy is only as healthy as the majority of its people, and too many hard-working men and women are struggling just to get by. Wages have suffered their steepest annual decline in more than a decade. Nearly half of all employees –47 percent—don’t have employer-sponsored health insurance. Forty-two percent don’t have paid sick days.

As we try to solve these problems in Congress, we cannot forget that our most powerful weapons in the battle for a just economy are employees themselves. If workers have a voice, and we protect them when they speak out, they become a formidable force for progress. That’s why union wages are 27 percent higher than non-union wages, why 93 percent of union members are covered by health insurance, and why 76 percent of union members have paid sick days.

It’s no wonder that the majority of American workers support union representation. The more immediate question is: Why don’t more American workers have it? The right to organize and join a union is a fundamental right recognized in the United Nations Declaration of Human Rights. Yet, the United States violates this fundamental principle every day because our current laws don’t adequately protect employee rights.

Seventy years ago Congress passed the Wagner Act, intending with this landmark law to protect the right of workers to organize and engage in collective bargaining. The law sought to ensure that workers would be given a full and fair opportunity to decide whether they wanted to be represented by a union, and to require employers to bargain in good faith with their employees’ chosen representative. Unfortunately, subsequent amendments, judicial narrowing, lax enforcement, and the rapid growth of powerful anti-union consulting firms have undermined the ability of the Wagner Act to achieve its intended purpose. As a result, the goals of the Wagner Act remain out of reach in the modern workplace.

Loopholes Inviting Abuse

The procedures that workers can use to organize and obtain union representation have large loopholes that invite abuse by employers. When workers attempt to form a union, employers often respond with tactics of intimidation, harassment and retaliation. Employees who join the fight for workers’ rights are fired. When workers win the right to organize, employers resort to delay in entering into a contract for months or even years after the union is certified.

Current law prohibits some of these abuses, but employers have no incentive to change their behavior. When employers are penalized for illegal acts, the remedies for workers come far too late—and the penalties are a slap on the wrist. It can be years before a union supporter who is fired receives back pay or reinstatement from the National Labor Relations Board (NLRB), which means that recourse to the Board is an empty threat. Litigation challenging unfair labor practices or improper conduct during a union election can remain pending before the Board for years. At the beginning of last year, 347 unfair labor practice cases had been pending before the Board for more than 17 months. By the end of the year, it had closed only about a third of these cases. Recourse to the NLRB is frequently too little, too late.

We need stronger protections that enable employees to organize freely and negotiate fairly. We also need stronger and stiffer penalties for employers who refuse to play by the rules.

Free Choice

That’s why I have introduced the Employee Free Choice Act now pending in Congress. This important law protects the right of workers to form a union; requires employers to come to the table to negotiate a contract; authorizes court orders to stop employers from firing or threatening union advocates; and strengthens the penalties in current law for mistreatment of workers who support a union.

Under the bill, employees will be able to choose between two options for gaining union recognition—a card check or the NLRB electionprocess. Since anti-union conduct is so rampant in union election campaigns, the elections become coercive and hostile, rather than free and fair. Under current law, workers can try to avoid such elections by asking the employer to recognize their union based on a signed worker authorization—a card check; but employers often refuse to accept a card-check procedure. Even if all employees sign cards supporting union representation, the employer can still require an election. The bill preserves the rights of union members by requiring employers to bargain with a union authorized by a majority of workers through the card-check procedure.

As a result, workers’ chances of freely exercising their right to freedom of association increase dramatically. In fact, the card-check procedure is good for both employers and unions, since it promotes healthy relationships between employers and employees.  Eliminating contentious elections from the certification process produces a better long-term relationship between union and employer.

First Contracts

The bill also requires employers to come to the table to negotiate a first contract. Fifty percent of employees who choose a union still don’t have a contract two years after the election. Under current law, management can get away with suppressing employees’ collective bargaining rights through bad faith or superficial bargaining, because there is virtually no legal deterrent to bad conduct. Under the bill, if no agreement on a first contract has been reached after 90 days of bargaining, then either employers or employees may request mediation by the Federal Mediation and Conciliation Service. If there is no agreement after 30 days of mediation, the dispute will go to arbitration to produce a contract that binds the parties for two years.

“First contract” arbitration benefits everyone, because it is an incentive for management and labor to bargain productively. A similar requirement exists in several Canadian provinces, and has been successful in improving labor-management relations between companies and new unions.

Real Penalties

Finally, the Employee Free Choice Act puts real teeth in the law, by adopting stronger and quicker penalties for violations by employers against employees who are attempting to organize a union or obtain a first contract. Current penalties are so minimal that employers treat them as a minor cost of doing business, and remedies for affected workers come far too late. The bill requires the NLRB to seek a federal court injunction against an employer when there is reasonable cause to believe that the employer has fired or discriminated against employees during an organizing campaign or union drive.

These reforms will level the playing field between management and labor. Current remedies for a violation of worker rights are exceedingly weak. Giving workers more powerful weapons will prevent management from using intimidation to harass or nullify union organizing efforts.

The time has come to stop the rampant abuse of millions of employees. Workers who are trying to form a union or obtain a first contract face insurmountable battles under current law. The Employee Free Choice Act levels the playing field for these brave workers, and ensures that the law does a better job of protecting their fundamental rights to organize and bargain with their employer. Surely this nation owes its hard-working men and women these opportunities.

Edward M. Kennedy (D-Mass.) is a member of the United States Senate, where he is the ranking member of the Committee on Health, Education, Labor and Pensions.

Labor and Employment Relations Association
Tel: 217-333-0072 | Fax: 217-265-5130 | LERAoffice@uiuc.edu | www.lera.uiuc.edu