The Employee Free Choice Act: A Skeptical View and Alternative

The AFL-CIO, along with its ally American Rights at Work, has invested a great deal of time, energy, and money in promoting passage of the Employee Free Choice Act (EFCA). Those of us who believe in collective representation hope that this initiative will fulfill the hopes of its promoters and produce a major advance in the number of workers with a collective voice at work. However, with Republicans in continuing control of Congress and the White House, the odds against passage of the Act would seem to be high. However, there are reasons to believe that, even if the Act should pass, the results will, unfortunately, fall short of expectations.

Among the key elements of the Free Choice Act that are intended to spark new organizing are card check certification, first contract arbitration, and stiffer penalties for employers who offend the law.¹ Since employers commonly commit unfair labor practices during certification election campaigns and stonewall during the negotiation of first contracts, American unionists believe that the establishment of procedures designed to counter those practices will significantly improve the labor movement's organizing prospects.

Unfortunately, Canadian experience indicates otherwise. In the private sector, where industrial relations are regulated by a legal framework similar to the one in effect in the United States, union density and bargaining coverage are falling even in provinces such as Saskatchewan and Quebec that have card-check and first contract arbitration clauses in effect (Adams 2006a). Although overall union density in Canada has remained steady, thus bucking an international downward trend, that constancy has been entirely the result of membership strength in the public sector where union recognition has been widely granted. Since 1970, density in the private sector has fallen from about 30 percent to less than 18 percent in 2005 (Godard 2005; Adams 2006a).

Since the early 1990s, Canadian unions have devoted significant new resources to union organizing with considerable success in terms of new union recruits. Jackson and Schetagne (2004) estimate that new organizing extended union coverage by between 1.4 and 1.8 percent annually. But, "the positive impact on union density has been offset by overall changes in employment in union and non-union workplaces" (Jackson and Schetagne 2004, 53). Moreover, the entry into Canada of aggressively anti-union employers such as Wal-Mart may have emboldened employers to take stronger positions on union-avoidance. Wal-Mart has been pushing for the end of card-check certification and the adoption in all Canadian jurisdictions of a vote in every certification case. The company argues that the current situation unfairly favors the interests of the established unions over those of the unorganized employer (Adams 2005). In recent years, right-wing organizations such as British Columbia's Fraser Institute have joined in that quest. The Fraser Institute, in addition, has been calling for the end to anti-scab laws, and for the adoption in Canada of right-to-work laws similar to those that exist in several American states (Veldhuis and Karabegovic 2005).

In 2002, the United Food and Commercial Workers Union initiated a well-funded and focused campaign to organize Wal-Mart stores in Canada. Card-check certification proved helpful in Quebec where the union has been certified as the bargaining agent for employees in a handful of company units. But, through the first half of 2006, the Canadian legislative advantages were unable to provide the union with the leverage needed to win a collective agreement. When issues in dispute at Wal-Mart's union-certified Jonquière, Quebec, store were submitted to first contract arbitration, the company shut down the store. In the next month UFCW-Canada lost representation votes at two other Wal-Mart stores in other parts of Canada. Canadian observers had little doubt that the incidents were directly and causally related (Adams 2005).

U.S. research indicates that nearly 60 million currently unorganized American workers would like to have collective representation via government certified agents.² Research by Freeman and Rogers (1999; 2002) indicates that most of the rest would like to have a less formal and less regulated type of...