Experts Weigh Pros, Cons of Employee Free Choice Act

Pegged by some business elites, such as Bernie Marcus, the co-founder of Home Depot, as the bill that will lead to “the demise of civilization,” and by some union advocates as the most significant advance in workers’ rights in over a decade, the Employee Free Choice Act has sparked a contentious debate on both sides since it was introduced in Congress just over a month ago.
Yesterday, the battle reached Cornell’s doorstep as Nancy Schiffer, associate general counsel to the AFL-CIO, and Arch Stokes, an attorney at the firm, Shea, Stokes, Roberts and Wagner, faced off to debate the bill’s merits in the final event of the School of Industrial and Labor Relation’s “Union Days.”
The proposed bill would amend the National Labor Relations Act — a law that has remained largely unchanged since it took effect in 1935 — by making it easier for unions to organize workers. The EFCA would allow workers to join or form a union if a majority of their fellow employees checked a card indicating their desire to do so.
Currently, employers can order that workers hold a secret ballot election — a process that can be delayed for months — the new provisions would provide employees the chance to fill out the card anyplace and anytime.
Schiffer discussed the problems with today’s ballot.[img_assist|nid=36983|title=Unionize this|desc=Experts debate the controversial Employee Free Choice Act yesterday in Ives Hall.|link=node|align=left|width=|height=0]
“Today, the employer has so much control over the process and they can delay and extend it,” she explained, “in the interim, employers hold one-on-one meetings with employees … I’ve been on organizing campaigns where [workers] were spied on, followed into the bathroom, videotaped and had their conversations recorded. It’s a very coercive atmosphere.”
In other cases, businesses will fire the lead organizer to ensure that the campaign never gains enough momentum to succeed and to serve as a warning for the remaining employees.
“If I’m a worker and I’m not sure whether I want to be involved in a union, well now I know…” Schiffer stated, “It has become cheaper for businesses to violate [labor laws] by disrupting and avoiding union organizing than to actually negotiate. They factor it into their expenditures.”
Yet even when unions are successful in organizing members, it still remains difficult to agree on a contract, Schiffer pointed out. According to one study, more than 44% of workers that form a union are unable to secure their first deal—an issue that the EFCA will also look to address. Under the proposed bill, if employers and workers cannot reach an agreement within 120 days of negotiating, an impartial arbitrator will be called in to resolve the dispute.
Stokes, however, remained skeptical about the motives behind the legislation. He contended that the bill will fail to increase union membership as significantly as proponents claim it will. He also said that unions are using it as a way to gain attention and revitalize a labor movement that has been in a steady decline for the past 30 years.
“She [Schiffer] is advocating a piece of legislation for political reasons … they believe it will arrest the decline in union membership,” Stokes said. “If we are to go by the premise that everyone should be involved in unions, then there would need to be a lot of different pieces of legislation, not just this”
Stokes also took exception with the proposed switch from the secret ballot to the card check, saying that the name of the act is a complete misnomer.
“This is not free choice. American elections work because they are secret … By taking away that aspect from the union election, we are taking away their freedom to choose whether they want to be a part of a union or not,” Stokes said.
Union advocates, though, point to the fact that it is businesses — not unions — that have been found to commit fraud in elections.
Prof. Kate Bronfenbrenner, labor relations, responded to Stokes’ criticism.
“It’s an interesting argument … But there have only been 42 cases where a union has been found guilty of coercion, compared with over 32,000 times that employers have,” she said. “Now think about how many times the employer hasn’t been caught.”
Whether or not unions are able to organize more easily and more effectively, however, does not necessarily mean that they will be able to do the same for contract negotiations, Stokes said.
“You look at the auto union crisis in Michigan and your first reaction is to blame the union, but its not their fault,” Stokes said. “I believe in a union’s rights. They have the right to bargain for as much as they can get. It’s the manager who could have said no. It’s the manager that has to have the guts to say no and to deal with a worker’s strike in the appropriate manner.”
Among other provisions in the EFCA, employers would be punished more harshly when they break labor laws.