Employee Free Choice: A Positive Change for U.S. Labor Law

by Seth Michaels, Mar 12, 2009

The Employee Free Choice Act, introduced in the U.S. House and Senate on Tuesday, would represent a critical change to the nation’s labor law. It’s a serious reform that would repair a broken system that is badly tilted away from workers. 

Yesterday at the National Press Club, experts on the process got a chance to discuss what the Employee Free Choice Act would mean for workers, for management and for the economy, in a discussion hosted by the American Constitution Society (ACS). The panelists included Julie Martinez Ortega, research director of American Rights at Work; Dean Baker, co-director of the Center for Economic Policy Research; management lawyer Willis Goldsmith; and Carol Piel, a senior researcher for Human Rights Watch.

Martinez Ortega put the case for passing the Employee Free Choice Act this way:

This is ultimately about what individual workers want to do to improve their workplace. If we can’t give people the tools to do that, there’s a problem.

Current law already requires workers to obtain sign-ups to request an election. The National Labor Relations Board (NLRB)—both now and under the Employee Free Choice Act—has the oversight to examine petitions of workers and determine whether they reflect the desire of workers to form a union. The legal process by which workers form a union wouldn’t change—but the ability of the employer to unilaterally and without cause reject majority sign-up would, Martinez Ortega said.

The same processes that have been used for decades would be used under the Employee Free Choice Act.

Martinez Ortega argued that the “secret ballot” argument frequently used by opponents is a red herring, because the conditions of NLRB elections are slanted toward management such that the ballot doesn’t rectify other flaws in the process—including the company’s ability to control information and the minimal penalties for illegally firing workers.

NLRB elections look nothing like elections for Congress. If the conditions in NLRB elections were used in El Salavdor’s election this weekend, the U.S. would surely declare the result flawed.

Martinez Ortega also explained the first-contract arbitration provision of the bill. Under the Employee Free Choice Act, either management or workers can, but are not required to, request mediation if a first contract is not reached after a period of three months. If that mediation process does not result in a contract, only then will a contract be referred to arbitration, which will have no time line imposed.

Baker discussed the need for the Employee Free Choice Act in the context of a decline in union membership in the past few decades—a decline he points to as being linked to corporate hostility toward unions and the lack of a legal framework that protects workers’ rights.

The business community’s fervent arguments against the Employee Free Choice Act frequently operate on the assumption that unions are bad for employment—an assumption, Baker says, that is undermined by serious scholarship on the matter.

There has been a lot of research on this topic—it’s one of the most researched topics in economics. The idea that unions are associated with unemployment is simply not borne out by the evidence.

Responding to the criticism that now is not the time to make it easier for workers to form unions and bargain, Baker noted that the Wagner Act, which created NLRB and instituted the freedom to form a union, was passed during the Great Depression. Baker contended the ability of workers to form unions helps to broadly share economic growth, decrease inequality and strengthen workers’ purchasing power, critical to a sustainable economy.

Piel talked about the freedom of association and, specifically, the freedom to form unions.

When we talk about the Employee Free Choice Act, we’re not fundamentally talking about union density…it’s a question of basic human rights. The current system of U.S. labor law falls short of what is required by international standards.

The formalities of labor law should not be used as a tool to deter the formation of unions, but that’s what happens routinely, Piel said. Workers need an effective remedy. Since 2000, looking at labor law, management practices and enforcement, HRW has come to the conclusion that to ensure freedom of association, workers, not management, need to be in control of how a union is formed. Human Rights Watch sums up the flaws of U.S. labor law and the need for the Employee Free Choice Act in a report released earlier this year.

It was an illuminating discussion, more so for the inclusion of Goldsmith, an attorney at Jones Day, who put forth the management sector’s arguments that the Employee Free Choice Act would hurt the economy and interfere with management’s right to communicate with its employees. Goldsmith contended the Employee Free Choice Act “isn’t about workers, it’s about unions”—a line of spin that attempts to undermine unions by casting them as something separate and distinct from workers. (That line is exposed as a fiction if you pay attention to the stories of workers who have attempted to form a union in their own workplace.) The problems with labor-management relations, Goldsmith contended, can be traced to an imbalance of power in favor of unions.

The research and facts presented by Piel, Baker and Martinez Ortega, however, points strongly in the other direction. Fundamentally, workers’ freedom to form unions and bargain has been crippled by unfair labor laws and abusive corporate practices. It’s bad for workers and it’s bad for the economy. That’s why we need the Employee Free Choice Act.

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