Union recognition in the USA

The election of Barack Obama to the United States Presidency has changed so much in world politics, but non-Americans may not appreciate how transformational his administration is for domestic politics. Obviously the world’s media reports the new policies aimed at overcoming the economic recession, but you probably haven’t been aware that a proposed change to the processes for achieving trade union recognition – supported by Obama – is causing considerable controversy in Congress.
It’s called the Employee Free Choice Act which, as a national trade union official for 24 years, I certainly support. Of course, if I had any doubts, they would be dispelled by the fact that three actors from my all-time favourite television programme, “The West Wing”, have endorsed the proposed legislation.


  • Janet

    Here is the argument AGAINST the EFCA as put by a trade organisation I am connected with. It seems a fair argument to me. We must remember that American Unions are not run in the same way as British ones.
    “Last year, the misnamed “Employee Free Choice Act“ (EFCA) was introduced in Congress. This legislation effectively eliminates the use of secret ballots in union organizing efforts and replaces it with a “card check system.”
    Although this legislation was narrowly defeated last year it is expected to re-emerge early next year. The card check bill would eliminate over 70 years of precedent established under the National Labor Relations Act of 1935 by taking away employees’ freedom to choose under a federally supervised, secret ballot election when deciding whether or not to join a union.
    It would replace the private, secret ballot election with a “card check” process that allows a union to organize if a majority of employees simply sign an authorization card. Under this system, employees’ signatures are made public to the employer, the union organizers and co-workers.
    Trading federally supervised private ballot elections for a card check process tramples the privacy of individual workers. Secret ballots are the only way to protect an individual’s freedom to choose without subtle or overt coercion.
    This legislation would also impose contract terms on private, unionized employers through a process of compulsory, binding arbitration. Imposing contract terms through compulsory arbitration is an unconstitutional infringement on the right of private employers to freedom of contract.
    The cornerstone of the democratic process, secret ballot elections, should not be replaced with an unfair process that removes rights from workers and puts them in the hands of union bosses.”

  • Nick

    One of the changes proposed under the EFCA seems wide open to abuse. It is proposed that if a majority of employees sign union authorization cards — effectively a public ballot, the employer will no longer have the option to request a secret ballot. This appears to incentivize intimidation and undue pressure by union organizers (in favour of recognition) and by management (against recognition.)
    Why not retain the right to a (federally supervised) secret ballot, which surely helps to protect workers from coercion by both employers and unions?

  • Eric Lee

    Janet and Nick’s arguments make sense and would convince me to oppose the Employee Free Choice Act except for just one small thing. They stand reality on its head.
    The system of federally-supervised workplace elections created by the National Labor Relations Act in the 1930s did create a fairer system than the one which preceded it – when unions enjoyed no legal protection at all. Seventy years ago, employers’ organizations argued that passage of the NLRA would violate basic freedoms while unions argued for passage of that law.
    In the intervening decades, and particularly since the early 1970s, union density has been in steep decline in the US. Studies have shown that part of the reason for this is the NLRA process itself.
    Once a union declares that it represents a majority of workers – and can prove this with signed authorization cards – employers can then use the process to begin coercing and intimidating workers, sometimes legally, sometimes illegally. This often results in union defeats in these elections.
    Typical employer threats include shutting down the factory, moving it to another state or another country, and so on. Employers are permitted to hold ‘captive audience’ meetings with their employees, who are frightened into abandoning the very idea of unionization. And there’s a whole industry of professional union-busters who get called in to held break a union once one has begun an organizing drive.
    The purpose of the EFCA is to put to a stop to this, and to restore some fairness to the process. Workers who want a union should be allowed to have one, and once a majority of workers has signed up, the employer should be compelled to negotiate a contract. Often at this stage, the employers – those who’ve lost those federally-supervised elections, and are stuck with union – stall and delay and sign no contract. That’s why unions are insisting that if the two sides can’t agree, binding arbitration must take place.
    In the workplace, as everyone knows, the employer holds the power – the power to sack workers or even to close down the business. That’s why unions often have to operate under clandestine conditions to quietly persuade workers of the advantages of collective action. Employers who find out about union organizing drives frequently sack those workers who’ve bravely stood up for their rights. The EFCA would provide some serious dis-incentives to employers who do that.
    All the EFCA does is restore a certain measure of fairness to industrial relations in a country with one of the weakest trade union movements in the world. The organizations which are today trying to block it are the same ones which 70 years ago thought the original National Labor Relations Act smacked of Communism.
    The passage of the NLRA was one of the outstanding legacies of the Roosevelt era, lasting far longer than many of the other New Deal reforms. If the Obama administration can pass EFCA, it will also be an enduring legacy and a victory for democracy.

  • Nick

    Thanks for your post, Eric. I couldn’t understand why the unions were so opposed to the NLRA process. After all, wouldn’t the secrecy of the ballot help to protect workers (as individuals) from management coercion? But now I see that another focus of union opposition is the public nature of the process. Once the NLRA process begins, management get the chance to provide their side of the issue, and those workers who were presented with a biased, one-sided view of the advantages of union membership might think again. So yes, it makes perfect sense for unions to oppose a process that makes their job more difficult by exposing the workers to different viewpoints and giving them a secret vote.
    I can understand why unions often feel the need to organize clandestinely, in a potentially hostile environment where the employer holds most of the cards. (No pun intended.) But if EFCA is passed, there will be even more incentive for unions to proceed clandestinely and to mislead and intimidate the workforce. If they can just get 50% + 1 authorization cards, they will be guaranteed recognition, without the need to contest the NLRA ballot. Additionally, there will be even more pressure on management to detect a union drive and to intervene, whether legally or not. So I predict that EFCA, by closing down the process of union recognition and incentivizing coercion from both sides, will worsen industrial relations in the US.
    I agree that workers who want a union should be allowed to have one. The question is: what is the fairest way of deciding whether a majority exists? I believe the solution lies in ensuring that all parties can have their say without coercion, and insisting on the privacy of a secret ballot. (Without coercion is the tricky bit, and I accept that overly aggressive union-busting is a problem.) I’m not convinced that either the current system or EFCA meets these criteria.

  • KarinJR

    You raise some good points, and although I was prepared to accuse you of a biased concern only about union intimidation, I was glad to see you acknowledge in your conclusion that employers are often guilty of coercion.
    Clearly, the current system is not functional. At the moment, it is employers themselves who run union elections – they are the ones who schedule the ballots, they decide where when and how the balloting will take place, and they are the ones who control the circumstances.
    In addition to Card Check, there are other important aspects of EFCA that I trust we can all agree on – provisions that reduce an employers power to abuse workers who seek to unionise, and imposing stiffer penalties on those who take retributionary action against unionising employees.
    Personally, I wouldn’t be willing to let these provisions go. Average American wages have been stagnant for over a decade, American workers have less right to vacation days, sick leave, and parental leave than any other western industrialised nation – clearly there is work for the unions to do here.
    But I would be open to negotiation on a unionisation process that all could agree would be fair. This would have to include strict controls of employer behavior in the run up to any such ballot (and yes, on the pro-union advocates as well). And it’s hard for me to see how you could completely eliminate the employer’s ability to threaten and coerce their employees. What’s your proposal?
    All the best,


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