The secret ballot system embodied in the procedures of the NLRB makes a mockery of democratic elections. These elections are nothing like political elections, though anti union ideologues just presume that they are. An employer can force employees to attend virulently antiunion meetings at work and insist that no one ask questions. When the employer tells lies, the workers are presumed to know that they are being lied to. All manner of threats are allowed so long as they are couched in neutral language (as in "Union workplaces often must shut down due to high wages") The union has no right to meet with workers at work; if it wants to contact workers, it must hold meetings outside the workplace. It would be as if the Republicans could force all eligible voters to attend anti-Democat meetings and if the Democrats wanted to have meetings with voters, they'd have to hold them in Canada or Mexico.
There are many other defects in the current election procedures. I won't go into these here. However, when employers do violate the labor law, by say firing a union suporter, the penalty is ridiculously weak. The fired worker might get his/her job back in the distant future with backpay (minus any money earned by the worker in the meantime). But the employer's action will have chilled support for the union. Again it would be as if the Republicans could cause supporter of other parties to be deported. The deportees could petition the State Dept. to get back home at some later date.
A second edition of my book Why Unions Matter will be published early next year by Monthly Review Press. In it I have short section on the Employeed Free Choice Act. Here it is:
THE EMPLOYEE FREE CHOICE ACT1 The AFL-CIO, the CTW, and most member unions poured more than one hundred million dollars combined into the presidential campaign of Barack Obama and millions more into efforts to get Democratic Senators and Representatives elected. One important reason for this support is that Obama and many Democratic politicians are on record in favor of passage by Congress of the Employee Free choice Act (EFCA). This act, which most of organized labor believes critical to union survival, would amend the NLRA in several important respects: * It would compel employers to recognize a union if a majority of the members of the bargaining unit sign union authorization cards (called card check recognition). Some unions have won through negotiations with an employer in one location a commitment from that employer to recognize the union in another place on the basis of a card check. However, no employer is bound to agree to such a thing, and the George W. Bush appointees who control the NLRB have ruled that if the NLRB certifies a union on the bases of card check, workers in the unit have forty-five days to petition for a secret-ballot decertification election, which can be triggered if 30 percent of the unit sign a decertification petition or card. The EFCA would overturn the NLRB decision and, given that employers routinely, grossly, and successfully violate the labor laws in organizing campaigns that end in a certification election, would make it easier for unions to organize employees. * Employers could be ordered to pay "treble damages" to workers illegally fired for engaging in activities protected by the NLRA. * Employers deemed to be repeat labor law offenders could be made to pay a $20,000 fine in addition to other penalties. * To avoid the long, drawn-out, and often futile bargaining for a first agreement, a union (or an employer) could invoke binding interest arbitration. An arbitrator would then, after a hearing, establish the terms of the first collective bargaining agreement, and these would be in effect for two years, after which traditional bargaining would take place. Organized labor is pinning it hopes on the EFCA. Obama said this about the Act while campaigning in Ohio during the Democratic primary:
If a majority of workers want a union, they should get a union. It’s that simple. We need to stand up to the business lobby and pass the Employee Free Choice Act. That’s why I’ve been fighting for it in the Senate and that’s why I’ll make it the law of the land when I’m president of the United States.2 Unions are pouring money into the campaigns of EFCA-friendly politicians and sending members around the country to bear witness to the need for the new law. Labor is also tying labor law reform and the EFCA to national economic problems. Economist Dean Baker said that
While suppression of workers’ right to organize may appear to have little direct relationship to the collapsing housing bubble that is the cause of this recession, on closer examination they are closely linked . . . . If workers are able to form unions and get their share of productivity growth, it an again put the country on the path of wage-driven consumption growth, instead of growth driven by unsustainable borrowing . . . . Restoring a wage-driven growth path will provide workers and businesses with much more stability than the current bubble economy.3 Not surprisingly, corporate America is spending gobs of money opposing the EFCA and preparing to lobby hard against it. The Act made it through the House of Representatives in 2007, but it never got to a Senate vote and there were then not enough votes to overcome a certain Bush veto in any case. But a Democratic sweep in 2008 could make passage much more likely. There is no doubt that the EFCA would benefit workers. But there is reason to be skeptical. As we have seen, past efforts at labor law reform have failed even when Congress and the White House were controlled by Democrats. How short of mass mobilization of workers will skittish politicians vote for the EFCA in the face of massive business lobbying? Will a Democratic president make the EFCA a priority when there will be so many excuses not to. And how given the top-down nature of so many unions will the workers be mobilized? And even if the EFCA becomes law, how will it change things? What does it do to guarantee the rank-and-file organizing campaigns that alone ensure long-term union survival. Even if a union is certified on the basis of card check and even if an arbitrator gives the parties a two-year agreement, what ensures that the union will be able to negotiate on its own after the first contract expires? A few labor scholars and activists argue that the entire EFCA strategy is flawed. It represents one more piecemeal attempt to change the law, each attempt unconnected to the last and unconnected to a coherent long-term strategy to rebuild the labor movement. These critics point out that "free choice" is not the central issue for workers. Instead they say that labor needs to embark upon a full-fledged "rights" campaign, modeled on the great civil rights and labor movements of the past. This must involve three practices: a long-term struggle for fundamental principles, the promotion of principles that are really fundamental (such as full freedom of association and an unrestricted right to strike and show solidarity with other workers by any nonviolent means. Any restrictions on these amount to involuntary servitude.), and reliance on rank-and-file activity (including civil disobedience any time fundamental principles are restricted). History teaches us that revolutionary changes in rights occur only when mass mobilization of ordinary people, led by men and women who refuse to compromise, forces the powers that be to respect them. For changes in labor law to effect progress for workers, organization must precede not follow them.