Column Wed Feb 11 2009

Accounting for EFCA

By Ramsin Canon

The Employee Free Choice Act, or EFCA, will trigger a massive confrontation between the small but growing labor movement and the largest business institutions in the country. EFCA would change profoundly over sixty years of labor law by forcing employers to recognize that a union has been formed whenever fifty percent plus one of the workers in a given workplace sign an authorization petition or authorization cards. The employer would then be forced to negotiate a contract with those workers within a short time frame, and suffer treble damages for firing union activists. In one bill, labor would address three of the biggest obstacles to organizing a union: the NLRB election, the first-contract stall (which should be self-explanatory), and the threatening and firing of union activists to chill organizing efforts. Here's the thing, though: business groups, and their conservative and libertarian representatives in government and media, claim these problems are exaggerated. They also raise the specter of On the Waterfront-style intimidation of workers by union organizers, browbeating and threatening workers in order to get their signatures and essentially force a union on them. As a final jab, they say the effect would be bad for business. Take as an example this article from the Heritage Foundation.

So what's the truth? It's hard to say -- but it isn't somewhere in the middle. And there are some issues raised by opponents of EFCA that labor has a duty to answer.

First, and most troubling for labor, is the argument that the entire "massive intimidation of union activists" is based on bad or imaginary numbers, and that in fact employers do not harass workers during organizing drives. I think this is the best argument I've heard against EFCA, because if there is no intimidation of workers, there is no justification for abolishing the NLRB election system as the only binding way to organize a union. The election and the intimidation are tied together. Opponents of EFCA cast doubt on the research of Cornell academic Kate Bronfenbrenner, despite the fact that her work was peer-reviewed. Bronfenbrenner provides the number that activists are actually fired in 25 percent of organizing drives, and they are harassed or threatened with their jobs in a much larger proportion.

I should explain the NLRB election a little bit to put it into context. The problem isn't the secret ballot voting -- a process that would still be available under EFCA, alongside mandatory recognition of a majority showing of interest; it's the process that leads up to the secret ballot. A union can only trigger an election with a "showing of interest," meaning no less than 30 percent of a given workplace must sign an authorization petition or cards and file them with the NLRB. The NLRB will then schedule an election -- after first a process of determining if the 30 percent threshold was met. The employer will often insist that certain workers shouldn't be included in the calculation, because, for example, they are technically management, or they work in different job classifications, etc. The election will then take place within six weeks. In those six weeks, employers can "campaign" for the election during work hours and in coerced meetings -- oftentimes high pressure one-on-one meetings -- where they discourage not only a vote for the union ("It's a secret ballot!" you're thinking) but more importantly they discourage campaigning publicly for the union. They suddenly drop the hammer on union activists, carefully scrutinizing them for the smallest mistake to find any grounds on which to fire them -- which would insulate them from accusations of retaliatory action.

So we elect our president using a secret ballot system. But imagine our presidential election if only one candidate was allowed access to voter lists, only one candidate was allowed to campaign with voters in the only instance where they are all together, and one of the candidates could fire you or take away hours or responsibility from you -- or offer you more money or more responsibility. What would the secret ballot reflect?

So that's the landscape -- but do employers employ these known methods to the degree we in labor accuse them of? The Heritage Foundation says no, they don't. They cite the fact that the numbers most often used by proponents of EFCA are based on loose interpretations of NLRB data -- for example, they say, it isn't suitable to look at all cases of "illegal firings and worker discrimination" that required back pay, because not all of those were firings for organizing. Later, however, discussing another issue, they make the point that most cases never reach the full NLRB -- they are settled at the regional level, or by an administrative judge, or they are settled privately.

Well, the same goes for the former situation. In fact, more so. The vast majority of workers fired for union activity not only don't go all the way to the NLRB, they never even file a complaint. Any good lawyer will tell a client when his/her case has no chance -- and many cases have no chance, particularly with decades of case law written by conservative-dominated Boards. Even not taking that as an assumption, we still have to consider that most cases of firings don't make it to any kind of hearing, much less the full NLRB. There is no way to quantify this; employers are smart enough to know when they have a bad case, and even smarter enough to know that having a conviction for firing union activists is extremely bad publicity both internally and publicly. So they will actively pursue settlement, almost invariably with non-disclosure clauses and/or clauses that clearly state that settlement is not an admission of guilt. The fired worker has the burden of proof and has to demonstrate the employer's motive -- what was in their heart when they fired him/her. It is a high and difficult standard to crest.

The thing about labor relations in the U.S. is that it's kind of a lawless Wild West, where might usually makes right. The laws are widely interpreted and poorly enforced; punishments rarely fit crimes. In some cases, labor has the might -- but in the vast majority of cases, it is management. And like any sphere where there are no laws, it is hard to understand unless you've experienced it firsthand.

I'm not insensitive to the employers' situation. Union organizing is a necessarily confrontational process, and employers who consider themselves a "good boss" can be extremely surprised and defensive when their employees show up one day demanding to take some of their power away from them. It feels like threat behavior, and the presence of an established union assisting their employees feels like an assault by an outside organization. Organizing drives polarize a workplace: the tensions are high, and undoubtedly, union activists can come to treat union opponents disrespectfully, even cruelly -- and vice versa. The boss likely hears only about the antics of the activists, though. If only there was some way to organize a union in a workplace in a non-confrontational way, but it just isn't possible. Whenever one party is trying to take power (and money) away from another, there will be a confrontation. That's almost the definition of confrontation. And they may see their anti-union propaganda -- usually purchased from a specialty "management-consulting" law firm -- as genuinely informative and sincere. Typically, it's packed with untruths -- the union will "force you" to go on strike (right, because unions love to strike); the union dues will be astronomically high (rarely above 2 percent); the union will interfere with your ability to go to the boss; and so forth. But I can understand why employers often behave the way they do.

That doesn't mean it's excusable. The fact remains that under the current labor laws, we do not enjoy the same rights in the workplace that we have in the civic sphere. Freedom of speech is, for practical purposes, nonexistent, as is unwarranted search, in the case of communications and even personal storage facilities. There is no due process in the workplace; currently you have no "right" to your job. Your job belongs to your employer, wholly. Even accepting that as okay, the right to organize a union is a right protected by law and recognized as an essential human right by the international community. But it is abridged by the activities of employers, activities that any labor-management consulting lawyer would freely admit to (and try to sell you, in a pinch). Employers practice active "union avoidance," and that entails violations of our legal, constitutional, and universal human rights; without these rights, exercising the franchise is meaningless. The presidential election would be impossible if we had no freedom of speech.

Intimidation, then, may be hard to measure, but that doesn't mean it doesn't exist. And employing an inductive argument -- "It hasn't happened that much, so it won't happen much in the future" -- is at best a weak argument for why we shouldn't correct the flaws that allow it to happen at all. Increasing damages for firing workers and eliminating the legal exclusivity of the "campaign period" that basically equates to a grace period for employers to assault the organizing effort addresses these flaws.

Next is the much weaker argument, that the EFCA process opens the door to union thuggery. This is not based on any data that can't be objected to in the same way that the Heritage Foundation objected to the numbers of activists discriminated against, intimidated, and fired. Anecdotally, it is ridiculous on its face. Opponents use the stereotype of Italian organized crime infiltration of labor to stoke extant prejudices against unions as collections of thugs. But that isn't the modern labor movement. First of all, by any measure and by all accounts, organized crime's control of labor has seriously dwindled. It is by no means gone -- particularly in certain trades and in certain locales -- but looking at the movement as a whole, the mob is a nuisance more than a systemic problem. None of the biggest or most active unions -- SEIU, AFSCME, the Teachers, the UFCW, CWA, UAW, UNITE-HERE -- have any real entanglement with organized crime, while the stereotypically mobbed-up unions, like the Teamsters and the Laborers, are well on their way to freeing themselves of any mob influence. Those in that first group of unions are highly professional organizations that resemble a sort of corporate/campaign organizational hybrid.

Also, and I know this is not a hard argument or anything, but go out and meet some organizers some day. When they aren't earnest twenty- or thirty-somethings just out of some liberal arts college, they are ideological lifers who started out as rank-and-file members of the union (that's an extremely broad generalization, but you get the point). It's not Bobby Baccala visiting your house and talking in impersonal pronouns; it's more likely someone with a Naomi Klein book splay-faced on the passenger seat of the Ford in your driveway. I understand this is anecdotal -- but so is the accusation that union organizers are aggressive thugs. You can call me a biased witness, but to dismiss my evidence on that standard dismisses this entire argument by the opponents of EFCA; they have no data, only anecdotes.

As for the last argument -- that the results would be negative -- it isn't really worth addressing. Not all of our laws should be determined by their material effect. EFCA addresses a violation of Americans' rights to organize a union. But also, there isn't any reason to believe it would be bad for business. The implied threat that employers will stop "creating jobs" because they don't want to be saddled with a union conveniently ignores the same market forces they usually invoke. If there is an opportunity to create profit, even a slightly smaller profit, by meeting some demand, somebody will presumably meet the demand. Unless we're supposed to believe that making union organizing easier -- as it is in some of the world's largest and strongest economies like France, the UK, Germany, Canada -- would create a situation where nobody could ever make a profit by meeting some unmet demand. That's clearly ridiculous. People will create jobs because "creating jobs" means you are creating more revenue (unless you're government) and more profit. Less revenue, goodbye jobs. It's called "layoffs".

It's kind of an unsatisfactory conclusion -- I would always prefer clean data to qualitative studies or theory. But the numbers are difficult, or impossible, to cleanly collect and interpret, and the choice of how to do so ends up marking your bias. Do employers deploy the intimidation and coercive tactics unions allege at the rate they allege? It's hard to say, but employers do deploy them -- an entire industry exists to deploy them. They do so knowing that they likely will never be punished and, if punished, the punishment would be preferable (in their calculation) to the result of not violating the law. That should be addressed, and EFCA does so.