Why We Should Support the Employee Free Choice Act

Roy Adams raises some provocative and important questions in his essay, "The Employee Free Choice Act: A Skeptical View and Alternative." He notes that American Rights at Work actively supports the hard work of the AFL-CIO and others within and outside the labor movement in advocating for the passage of the Employee Free Choice Act (EFCA).

The proposed legislation, if enacted, would make a real impact on workers trying to form unions and bargain collectively. It would also provide a vehicle for educating the public and elected leaders about the obstacles that workers face when they try to organize. We agree with Professor Adams that workers' rights are under attack both in the United States and abroad. However, we disagree with his critique of EFCA. We believe it to be a critical part of the strategy to achieve workplace democracy.

Adams's critique of EFCA centers on three main points. He argues that it would not significantly advance the ability of U.S. workers to organize, that an international human rights approach would be better than altering U.S. labor law, and that real change in labor law will not happen without a broad social movement.

With respect to his first argument that EFCA would not significantly affect the ability of workers to organize, we disagree wholeheartedly. EFCA identifies and improves three aspects of labor law that must be changed if U.S. workers and their unions are to fairly advance their interests at the workplace: card-check recognition, penalties for violations of the law, and mandatory first-contract arbitration. Without at least those critical changes to labor law, the ability of workers to exercise their human rights will continue to deteriorate. The changes would be an urgent stopgap to employer interference and would appropriately identify the real problem with labor law as practiced in today's workplace: employer interference. If EFCA achieved nothing more, it would have succeeded at moving our nation closer to workplace democracy.

One of the most important provisions of EFCA is the recognition of card check, or "majority sign up," as a legitimate means for determining whether the workers want to form a union. Whereas employees can do this voluntarily at present, this provision would make recognition mandatory. Card check has become an increasingly popular mechanism for union growth, and NLRB-supervised elections are becoming much less common. Law Professor Jim Brudney (2005) documents that between 1998 and 2005 at least 80 percent of new union members joined without NLRB-supervised elections. Many of the new union members among that 80 percent used the card-check procedure to gain union recognition. At Cingular Wireless, by using card check, CWA has successfully organized tens of thousands of workers, even in worksites where Cingular's predecessor, AT&T, had previously squelched organizing.

Workers prefer this method of organizing over NRLB election for clear reasons. With the assistance of American Rights at Work, Adrienne Eaton and Jill Kriesky surveyed workers who participated in card-check and election campaigns. They found that workers who underwent efforts to form unions via the NLRB election process reported significant infringement by management on their right to organize; whereas the workers in card-check campaigns did not report such interference (Eaton and Kriesky 2003; American Rights at Work 2006).

Workers face an uphill battle when they attempt to organize, and even Roy Adams concedes that the Quebec labor law that requires recognition of the union upon presentation of cards by a majority of workers was an important factor in securing representation for Canadian Wal-Mart workers in Jonquiere, Quebec. Not one Wal-Mart store in the United States has recognized a union for all of its workers as did the Jonquiere store. Moreover, no U.S. Wal-Mart has actually sat down to bargain with workers representing all departments within a store. Securing the right of workers to be recognized as a union upon demonstrating majority status with cards would move forward the efforts of millions of U.S. workers by leaps and bounds. If you do not think that writing card check into law would...