23 March, 2009
On 10 March, the labour-backed Employee Free Choice Act (EFCA) was introduced in both houses of the US Congress. If passed, the legislation – which has the support of global labour – would remove many of the advantages an employer now routinely uses to avoid unionisation in the US.
The proposed law would entitle a union to be authorised to represent workers’ interests if a simple majority signed cards or a petition requesting union representation. Currently, as mandated under the 1935 US National Labor Relations Act, union recognition can occur either through such a “card check” measure, or through a government supervised election.
But it is an employer that chooses which of the two methods is used and in nearly all instances, a government ballot is the bosses’ choice. This gives an employer the necessary time on a jobsite to implant fear and counter the merits of unionisation.
Statistics reveal that in 25% of all US organising drives, employees with pro-union sympathies or those who openly support a union are sacked. Further, in 78% of all campaigns leading to a government ballot, employers use intimidation by delivering harsh anti-union messages on the shop floor, including threats of plant closure, layoffs, and other negative impacts if a union is elected.
The EFCA would grant workers, not employers, the right to choose the method for union representation, either through a National Labor Relations Board (NLRB) secret-ballot election or through a majority card-check or petition. (Business interests in the US are now engaged in an intense lobbying effort against EFCA, saying it absolutely denies secret-ballot elections, a falsehood.)
Secondly, the proposed law contains mandatory government arbitration so that a collective agreement can become effective if the two parties cannot reach one after a period of time. Similar to industrial relations in many developed countries, both labour and management submit proposals to a government panel, which then would put in place a collective agreement for a two-year period.
Currently, after a union is certified, many employers in the US practice what is called “surface bargaining,” meaning they adhere to the 1935 law which states they must engage in bargaining, but do so without ever intending to enter into a collective agreement. In such practices, the result is to delay the process and to frustrate the legitimate desire of workers to be part of a collective labour agreement.
Another major US labour law reform contained in the EFCA is a financial penalty on employers who discriminate against workers exhibiting lawful union activity. Now, there is no risk to an employer who fires union activists during organising campaigns. A worker must prove such bias, with the NLRB sometimes taking years to determine a case, including inevitable employer appeals. Even when a case is concluded in favour of a worker, the award is mere back pay, minus wages and other compensation the worker may have received following the discharge.
The EFCA contains triple back pay damages for workers found to have been illegally sacked.
This is the fourth time the EFCA has been introduced in the US Congress. The last time, in March 2007, it passed the House of Representatives by a 241-185 count, but died three months later in the 100-member US Senate, where an archaic rule mandates 60 votes necessary to invoke cloture, or the required number needed in a vote to halt a filibuster. The measure then had 51 US Senate supporters, although President George Bush promised a veto.
This time the EFCA has the support of President Barack Obama. Two weeks ago, when introduced, the EFCA had 223 of 565 House members signed on as co-sponsors, while the Senate side had 40 co-sponsors.
In this session of Congress, sponsors will attempt a different strategy by first bringing EFCA forward in the Senate. It is expected to begin receiving committee hearings in late April, with the bill brought to the Senate and then House floors during the summer.
Global labour, through the Council of Global Unions, is encouraging national unions to bring the American EFCA to the attention of their respective governments, as well as to employers who have operations in the US. More can be learned about this important US legislative proposal by clicking here.