This week the Senate will decide whether to consider the Employee Free Choice Act (EFCA), perhaps the most important bill for organized labor in decades.  The bill would allow workers to form a union after a majority of them sign a card expressing a desire to do so—thus replacing the current system that often requires a subsequent secret-ballot election to confirm this demonstrated intent.  Opponents of the legislation have mounted an aggressive public relations campaign that characterizes the elimination of the secret-ballot election as anti-democratic.  These critics have it backwards.

The business and employer groups attacking the EFCA argue that unions intimidate employees into signing authorization cards and a secret-ballot election is therefore necessary to protect workers’ right to make this choice freely.  One such group – without providing a source – reports that 18% of employees who sign cards do not actually want the union.  However, this argument reflects a failure to understand the actual power-dynamics and political realities that exist in the workplace and govern these elections.

During such an election process, it is the employers, not the unions, who have unlimited opportunities to persuade workers and control the levers to intimidate them—and most employers do exactly that.  A Cornell scholar’s study of private-sector employers who faced employees desiring to join a union showed that 92% of them will require workers to attend anti-union meetings (almost always scheduled during work hours).  Half of employers threaten to shut down the business if the employees unionize.  Over three-quarters require anti-union training for supervisors, who often then intimidate and threaten workers in one-on-one meetings.  The vast majority of employers even hired outside consultants to aid their union-busting efforts.  By contrast, unions are often banned from even entering the workplace.  They must be creative just to find chances to talk with the workers.

Most important, however, is that employers have the power to fire a worker for supporting the union.  If this happens, the worker is left unemployed and struggling to find a new job in order to provide for her family.  She can hope that months or years later the National Labor Relations Board will award her backpay for the time spent out of work, but this cannot include compensatory or punitive damages.  Thus, supporting the union can be extremely risky and costly for a worker.  For an employer though, the cost of illegally firing a worker is minimal.  The best evidence of this fact is that one quarter of employers that face a unionization drive will (illegally) fire at least one worker.   

Moreover, this low-cost illegal conduct by employers is very effective at scaring workers and thwarting an organizing effort.  Thomas Kochan and John Ferguson of MIT performed a study of 22,000 organizing drives which revealed that cases in which a charge of illegal conduct was filed against the employer were 36% less likely to even reach the election phase.  Moreover, even if the election does occur and the majority of workers support the union, litigation and stalling tactics can result in many months of delays before the union is recognized, let alone a contract signed.  Kochan and Ferguson found that of the cases where a substantial likelihood of majority support for unionization was demonstrated and an election petition was filed only 20% actually resulted in a contract between the union and employer.

So it seems clear that if workers’ right to unionize is to have any real meaning in this country then something must change.  The card-signing system proposed by the EFCA would limit employers’ opportunities to intimidate workers and delay unionization by recognizing the union once a majority of workers show their support for it.  Workers would no longer be forced to then “re-prove” their desire to unionize through an election.  The bill also increases the penalties on employers who violate the law since the current ones have proven useless in deterring them from engaging in highly effective albeit illegal behavior.

Given the rampant coercion practiced by employers during unionization elections – in which workers are often asked, essentially, to choose between their job and the union – it seems quite ironic that the opponents of the EFCA champion the current system for preserving workers’ right to choose freely.  As Kochan and Ferguson point out, it is also quite contradictory to exalt elections as the bulwark of democracy and then support a system in which it is so difficult for workers to even have an election take place.  In light of these facts, one cannot help but think that John Sweeney’s observation in the New York Times might be right: “All those folks who are talking about democracy…are really folks concerned with keeping the labor movement from growing and becoming stronger.”