Why Workers Need the Employee Free Choice Act

Unions are good for workers. Today, median weekly pay for union members is $886, compared to $691 for nonunion workers. Moving cargo on the Oakland waterfront pays three times what stocking shelves does at Wal-Mart because longshore workers have had a union contract since 1934.

In 1936, Congress recognized the value of unions and passed the National Labor Relations Act, setting up a legal system in which private sector, nonfarm workers could join unions and bargain. The preamble declares the law's purpose: "encouraging the practice and procedure of collective bargaining and ... protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing."

Today, however, the law is virtually unable to fulfill its intended function. Rep. George Miller, D-Martinez, has proposed commonsense measures to restore its effectiveness in the Employee Free Choice Act. Employers are mounting a hysterical campaign against it, even calling it "bolshevism," and claiming to be protectors of their workers' rights. We need a reality check about what really happens when workers try to organize.

The Employee Free Choice Act would require employers to repay three times the back pay of a worker fired for organizing a union, with $20,000 fines for willful or repeated violations. It is illegal to fire a worker for union activity, but pro-union workers were fired in 30 percent of union-representation elections in 2007, according to the Center for Economic and Policy Research. There are no fines or penalties on employers for this - just reinstatement and back pay, and employers even get to deduct the unemployment benefits of the fired worker.

The National Labor Relations Act is the only federal law where violators receive no punishment. Workers, knowing they can be fired so easily, are understandably afraid to join unions.

The proposed legislation would therefore bring back the process for forming unions used in the years after the labor act was first passed (and which is used today in Canada). Workers would be able to sign union cards, and employers would have to recognize their union if a majority signed. Today, employers demand secret-ballot elections, and then wage an anti-union campaign that peaks on election day. For instance, according to the International Longshore and Warehouse Union, at Blue Diamond in Sacramento, the company told workers two days before the election that many might lose their jobs if the union won because growers wouldn't bring any more almonds to the plant.

Companies like Blue Diamond use outside union-busters, who have created a billion-dollar industry managing these anti-union campaigns. Campaign tactics include: In the weeks before these tainted elections, 51 percent of employers threaten to close if the union wins; and 91 percent force employees to attend one-on-one anti-union meetings with supervisors. This conduct is effectively unpunishable, making a mockery of free elections. Signing cards is a safer, calmer process that workers control themselves, and workers keep the option of using either the cards or the election - their choice, not their employer's.

Last, when workers form a union and a majority supports it, companies should negotiate a contract. That's what the law says. The reality? Even when workers win elections, companies don't negotiate in half the cases. After a year, they can legally walk away. When workers at the Rite-Aid warehouse in Lancaster (Los Angeles County) won an election, the most important agreement they could achieve after 18 bargaining sessions was the location of the union bulletin board.

With the Employee Free Choice Act, after 120 days of fruitless bargaining on a first-time contract, an arbitrator can resolve the issues still in dispute. Companies say they fear an outsider imposing unrealistic conditions. But with no mechanism to force agreement, companies know it's lots cheaper to wait out the year than to raise wages and provide better benefits.

Many employers simply do not accept the law's intention - encouraging workers to organize. They created the need for the act by undermining the process and rights established in 1936. By first undermining the law, and then resisting Miller's common-sense remedies, they are pushing for a return to an era when organizing a union had no protection at all.