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Labor Law Reform

The Employee Free Choice Act

The No. 1 priority for the labor movement in the 111th Congress is enactment of the Employee Free Choice Act to restore the right of workers to form a union and to bargain collectively with their employer. The UAW believes that the right to 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 right of workers to unionize, but it no longer serves these purposes. Aggressive employer anti-union campaigns, in combination with decisions of 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 and their lawyers have an arsenal of legal and illegal tactics to prevent the union from obtaining a first contract.

For these reasons, the UAW strongly supports efforts to enact the Employee Free Choice Act. Briefly, the bill would: (1) require employers to bargain with a union upon verification that a majority of employees had signed union authorization cards; (2) provide for mediation and arbitration for a first contract; and (3) increase penalties for employer violations of the NLRA. (See below for details on each provision.)

The House of Representatives passed the Free Choice Act on a largely party line vote of 241-185 early in the 110th Congress, soon after Democrats had gained control of the House. The Senate then took up the bill in June 2007. 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. The same bill is expected to be reintroduced early in the 111th Congress by Sen. Edward Kennedy, D-Mass., and Rep. George Miller, D-Calif., chairs, respectively, of the Senate and House labor committees.

President Obama, an early Senate co-sponsor of the Employee Free Choice Act, has said he will sign the bill when it reaches his desk. It is our job to get it to his desk! In 2009, the UAW will be working with the rest of the labor movement and our allies to reach the needed 60 votes in the Senate to restore the right to unionize through the Employee Free Choice Act.

1. Recognition by authorization cards

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, report workers to the Immigration and Naturalization Service, 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 working hours. (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 plant 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." According to the Cornell University study, 71 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 often use an alternative technique known as majority sign-up or card check. 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.

The NLRA has permitted union recognition by majority sign-up for decades. But the way the law is written, it is the employer who decides whether to recognize the union on the basis of authorization cards or to insist on an NLRB-conducted election. The Employee Free Choice Act would make it so the employees, not the employer, have that choice.

The Employee Free Choice Act 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 workers are able to organize 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. Republicans from Georgia and South Carolina introduced the Secret Ballot Protection Act 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. With the use of anti-union consultants, delay, and the inadequate remedies 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 the union, 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 to an election, the decertification election often goes forward and the union – seen as weak and ineffective – is often voted out.

The Employee Free Choice Act provides that if an employer and a union are engaged in bargaining for their first contract and 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 a plant is for the employer to post a notice saying they won’t do it again.

The NLRA does not provide for punitive damages. Nor does it provide for stronger penalties for repeat violators, as is done by OSHA and the Environmental Protection Agency. The limited back pay penalty is so weak that for many employers, it pays to fire key union supporters to chill an organizing drive. To rectify this situation, the third prong of the Employee Free Choice Act would strengthen the penalties for employer violations of the NLRA by providing that:

(1) 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.

(2) the NLRB must award 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.

(3) the NLRB can impose 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.

Teaching and Research Assistants

In recent years, the UAW has been at the forefront of organizing in higher education. Tens of thousands of university teachers and researchers have successfully organized as UAW members and won dramatic improvements in wages, benefits and working conditions. Unfortunately, as this growing movement expanded into private universities and won important new rights, it was dealt a setback by the Bush appointees to the National Labor Relations Board. In 2004, the NLRB’s Republican majority held in Brown University that teaching and research assistants are no longer "employees" within the meaning of the NLRA, thus stripping them of the protections afforded by the statute. This ruling meant that thousands of ballots from union representation elections at several universities were destroyed and tens of thousands of student employees were stripped of their statutory right to form unions.

At New York University, where teaching and research assistants had successfully organized and won a groundbreaking first contract in 2001, the Brown University decision also enabled the university administration to refuse to continue to recognize and bargain with UAW teaching and research assistants at the expiration of our collective-bargaining agreement. Despite strikes, political pressure and boycotts, NYU and other private universities continue to hide behind this wrongly decided NLRB ruling. The struggle to bring NYU back to the bargaining table continues today and support from workers remains strong.

In the last Congress, Rep. George Miller, D-Calif. and Sen. Edward Kennedy D-Mass. introduced the Teaching and Research Assistant Collective Bargaining Act to reverse the Brown decision and restore bargaining rights to teaching and research assistants. In the 111th Congress, the UAW will continue to work with other unions and our allies in Congress to advocate for this legislation.

The RESPECT Act

In 2006, a three-member Republican majority of the NLRB, in a case involving a UAW organizing campaign in Michigan, broadened considerably the definition of a "supervisor" under the NLRA by significantly expanding the definitions of the terms "assign," "responsibly to direct," and "independent judgment." These more inclusive definitions make it much more likely that workers who perform "minor supervisory duties" as opposed to "essential management duties" will now be considered supervisors and excluded from the NLRA's protections. By radically redefining who is a supervisor within the meaning of the NLRA, this decision and the two other supervisory decisions issued on the same day have potentially sweeping implications. Employers can use this new definition of supervisor to claim supervisory status for 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.

In the last 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. The RESPECT Act would overturn these terrible NLRB decisions and restore the original intent of Congress by eliminating from the definition of supervisor the terms "assign" and "responsibly direct," terms commonly considered to be minor duties and associated with those of a straw boss, lead, or professional rather than a supervisor. Further, the RESPECT Act would add language to the definition of supervisor specifying that in order for a worker to be considered a supervisor the worker must spend a “majority of the individual’s work time” performing supervisory functions.

During 2009, the UAW and the rest of the labor movement will be working to build support to enact the RESPECT Act.

The Legacy of a Bush NLRB

In addition to the decisions discussed above, during the Bush administration the Republican-dominated NLRB issued many other anti-worker, anti-union decisions, including 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 longstanding NLRB precedents. Other decisions announced new rules or applied existing law in ways that significantly altered prior NLRB policy.

With President Obama nominating new members to the NLRB and a more Democratic Senate confirming them, we are hopeful that a new Obama-appointed majority on the NLRB will reverse or revise hostile decisions by the Bush board, and will instead foster the national policy of the NLRA to encourage collective bargaining and to protect worker rights to unionize.

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