Labor Law Reform

The Employee Free Choice Act (EFCA)

The UAW believes that the rightto form a union is a fundamental human right and a cornerstone of a free and democratic society. The National Labor Relations Act (NLRA) was enacted in 1935 to protect the rights of workers to join unions and to bargain collectively with their employers, but it no longer serves these purposes. Aggressive employer anti-union campaigns, in combination with Republican appointees to the National Labor Relations Board (NLRB) and long delays at the NLRB and in the courts, have effectively gutted the NLRA’s protections. As a result, it is now very difficult for workers to successfully organize by going through an NLRB-conducted election. When workers do choose to be represented by a union, moreover, employers have an arsenal of legal and illegal tactics to make certain the union fails to obtain a first contract.

For these reasons, the number one labor law priority for the UAW is to enact the Employee Free Choice Act (EFCA) (H.R. 800; S. 1041), which would: (1) require employers to bargain with a union on the basis of card-check recognition; (2) provide for mediation and arbitration for a first contract; and (3) increase penalties for employer violations of the NLRA. Thanks to tremendous grassroots efforts by members of the UAW and other trade unions, as well as the commitment of the new House Democratic leadership, in early 2007 the House passed EFCA on a largely party line vote of 241 to 185. In June the Senate also took up EFCA. Although a majority of senators, including all Democrats, supported this vital legislation, it failed to get the 60 votes needed to break a GOP filibuster.

During the coming year, the UAW will be working with the rest of the labor movement to continue to educate members of Congress and the public about the importance of EFCA, and the need to enact this vital labor law reform measure.

1. Card-Check Recognition

A majority of employers either take advantage of loopholes in the NLRA or simply violate the law to spy on, harass, pressure, threaten, intimidate, suspend, fire, deport and otherwise victimize workers who attempt to exercise their right to act collectively through a union. With tactics like these, it is no wonder that it is so difficult for workers who want to join a union to succeed in organizing.

Thirty-six percent of workers who vote “no” in union representation elections explain their vote as a response to employer pressure, according to a Cornell University survey. According to the same survey, employers illegally fire at least one worker in 25 percent of all organizing campaigns. Ninety-two percent of employers make their employees attend captive audience meetings, where they must sit through one-sided, anti-union presentations during company time. (Union supporters, of course, are given no opportunity to speak.) On top of captive audience meetings, 78 percent of employers have supervisors hold repeated closed-door, one-on-one meetings with workers which are very intimidating to most workers.

Additionally, in the manufacturing sector especially, employers routinely threaten to close or to relocate the facility if workers vote for the union. Although the NLRA makes it illegal to threaten a plant closing, union-busting consultants coach management on how to phrase such threats as legal “predictions.” Over 75 percent of manufacturing companies threaten or “predict” the plant will close or move if workers vote for the union.

Because it is very difficult for workers to form a union by going through the NRLB election process, the UAW and other unions now use an alternative technique known as card-check recognition or majority sign up. Under majority sign-up, the employer voluntarily agrees to recognize the union if the union presents signed union authorization cards from a majority of workers. In most instances, the authorization cards are validated by an outside person, such as a neutral arbitrator.

EFCA would require employers to recognize and bargain with unions who have demonstrated majority support on the basis of signed authorization cards. With majority sign-up, the union is able to organize workers without the assault from a full-blown anti-union campaign, which is generally triggered at the moment a union files a representation petition with the NLRB. Workers have a much higher rate of success in unionization drives without the interference and intimidation of an anti-union campaign.

Noting the recent success of majority sign-up by the UAW and other unions, congressional Republicans introduced legislation in the 110th Congress that would bring a halt to these organizing successes. The late Rep. Charlie Norwood, R-Ga., and Sen. Jim DeMint, R-S.C. introduced the Secret Ballot Protection Act (H.R. 866; S. 1312) that would make majority sign-up illegal. Under this bill, employers would always be assured the opportunity to mount a campaign of intimidation and harassment to keep workers from organizing.

2. Mediation and Arbitration for First Contract

When workers do manage to get over the obstacles to unionizing, they frequently face employer resistance to negotiating a first contract. In fact, 32 percent of workers who demonstrate majority support for union representation lack a collective-bargaining agreement one year later. With the use of anti-union consultants, delay and the inadequacies of the NLRA, many employers drag out negotiations for a first contract until one year passes. After one year, the NLRB will accept a petition to decertify and it is common for employees who were active in the “vote no” committee during the organizing drive to file to decertify the union. Without a contract as a bar, the decertification election often goes forward and the union – seen as weak and ineffective – is frequently voted out.

EFCA provides that if an employer and a union are engaged in bargaining for their first contract and are unable to reach agreement within 90 days, either party may refer the dispute to the Federal Mediation and Conciliation Service (FMCS). If the FMCS is unable to bring the parties to agreement after 30 days of mediation, the dispute is referred to arbitration and the results of the arbitration are binding on the parties for two years. The time limits may be extended by mutual agreement of the parties.

3. Stiffer Penalties

The ineffectiveness of NLRA remedies serves as an incentive for employers to interfere with and intimidate workers’ efforts to unionize. If an employer is found to have illegally fired a worker, for example, the monetary penalty is limited to back pay – minus any money the fired worker earned, or should have earned, in the meantime. The penalty for illegally threatening to close the plant is for the employer to post a notice saying it won’t do it again.

The NLRA does not provide for punitive damages. Nor does it provide for stronger penalties for repeat violators, as under OSHA or the Environmental Protection Act. The limited back pay penalty is so weak that for most employers, it pays to fire key union supporters to chill an organizing drive. To rectify this situation, the third prong of EFCA would strengthen the penalties for employer violations of the NLRA three ways.

EFCA provides that the NLRB must seek a federal court injunction against an employer whenever there is reasonable cause to believe that the employer has discharged or discriminated against an employee, threatened to discharge or discriminate against an employee, or engaged in conduct that significantly interferes with employee rights during an organizing or first contract drive. This provision would get discharged union supporters back in the workplace without the delay – often years – that occurs under current law.

EFCA provides for triple back pay when an employee is illegally discharged or discriminated against during an organizing campaign or first contract drive. This provision would make it more expensive for employers to fire union supporters. Finally, EFCA provides for civil fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated employees’ rights during an organizing campaign or first contract drive.

The RESPECT Act

The Republican appointments made by President Bush to the National Labor Relations Board have been hostile to unions and insensitive to the needs of working people. In 2006 a three-member Republican majority of the board ruled, in a case involving a UAW organizing campaign in Michigan, that registered nurses who periodically act as charge nurses are “supervisors” outside the protections of the NLRA.

This terrible decision was based on the grounds that the charge nurses, on a rotating basis, assign their co-workers to specific patients on a shift, even though they also do the same work as the other registered nurses and have no authority to hire, fire, discipline or promote employees. By radically redefining supervisors, this decision may have sweeping implications beyond nurses and the health care industry. The new definition of supervisor could extend to millions of other workers: professional employees who give tasks to assistants, team leaders who give direction to co-workers, working foremen on construction sites and many more workers who for more than 70 years have enjoyed the protections of the NLRA.

Early in the 110th Congress, Sens. Chris Dodd, D-Conn. and Dick Durbin, D-Ill. and Rep. Rob Andrews, D-N.J. introduced the Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers Act, known as the RESPECT Act (S. 969; H.R. 1644). This bill would restore the original intent of Congress by requiring that a “supervisor” must have some authority over other workers other than simply assigning or directing them work while working alongside them.

The UAW and the rest of the labor movement will be working during 2008 to build support for the RESPECT Act. We are committed to enacting the REPECT Act in the second session of the 110th Congress.

Graduate Research and Teaching Assistants

In another case involving the UAW, in 2005 the NLRB’s Republican majority held that graduate research and teaching assistants are no longer “employees” within the meaning of the NLRA. This ruling dealt a crushing blow to unionization efforts by graduate assistants at a number of universities and led New York University to refuse to continue to recognize and bargain with the UAW at the expiration of our collective-bargaining agreement. The struggle to bring NYU back to the bargaining table continues at the time this paper was written.

In 2008, the UAW will continue to work with allies in Congress to push legislation to reverse this terrible decision and to restore collective-bargaining rights to graduate teaching and research assistants.

Bush NLRB’s “September Massacre”

In September 2007 the National Labor Relations Board (NLRB) issued 61 decisions. Because Bush appointees make up a majority of the NLRB, the overwhelming majority of these decisions favored management. This included decisions making it harder for workers to organize through voluntary recognition from their employer; making it harder for workers who are illegally fired for their union activity to recover back pay; making it easier for employers to discriminate against union organizers (or “salts”), thereby making it harder for unions to use this organizing tactic; making it easier for employers to hire permanent replacements for employees who exercise their statutory right to strike; making it easier for employers to file lawsuits in retaliation against NLRA-protected activity; and making it easier for employers to target union supporters for layoffs.

A number of these decisions reversed long-standing NLRB precedents. Other decisions announced new rules or applied existing law in ways that significantly altered prior NLRB policy.

These decisions continue the anti-worker bias that has pervaded the NLRB since a Bush-appointed majority took control of the board in 2001. They reflect the hostility of the Bush administration to the ability of workers to exercise their fundamental rights to organize and bargain collectively.

During 2008 the UAW and other unions will be making a major effort to educate members of Congress about these terrible decisions by the Bush NLRB, and how the board has become completely devoted to pursuing an anti-worker agenda. We will be urging Congress to take steps to stop the NLRB from continuing to undermine fundamental worker rights.

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