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A growing, bipartisan coalition of policymakers supports the Employee Free Choice Act, proposed legislation that would ensure that workers have a free choice and a fair chance to form a union and bargain with their employees for higher wages, benefits, and better working conditions. This fact sheet examines how the core provisions of the bill address weaknesses in current U.S. labor law and its enforcement by the National Labor Relations Board (NLRB).
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PROBLEM: EMPLOYER LAWLESSNESS
Under the National Labor Relations Act (NLRA), an employer found
guilty of illegally firing an employee for union activity must only
give backpay to that employee—minus whatever he or she earned in the interim. And when employers
violate the law by issuing threats of closings or interrogating
employees, they are only required to post a notice telling workers that
they will not break the law. Many employers find the punishment for
illegal activity a bargain, if firing a pro-union employee scares
others from supporting the union.
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For every worker fired, 395 coworkers receive the message: get involved with the union and you’ll get a pink slip.
- In 2005, the average amount employers paid to victims of illegal firing or retaliation was only $2,667.
- Some executives refer to the paltry cost of breaking the law as a “hunting license.”
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SOLUTION: STRENGTHEN PENALITES
The Employee Free Choice Act would increase monetary penalties against
employers who illegally fire or retaliate against pro-union workers
during an organizing campaign or an effort to obtain a first contract.
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Employers would have to pay victims three times the amount of backpay owed to them.
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Employers would be fined up to $20,000 for illegal acts committed during organizing or first contract negotiations.
Smithfield: A case for stronger penalties
When pork processing company Smithfield was faced with a union election
in 1997 in North Carolina, it threatened to close the plant and spied
on, interrogated, and physically assaulted its employees. The NLRB only
ordered Smithfield to read, post, and mail a note to employees saying
they will not break the law. In 2006, the NLRB offered a new remedy for
the misbehavior—a new election.
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PROBLEM: EMPLOYERS DENY WORKERS FREE CHOICE
Employers often manipulate the system to silence employees who attempt
to form unions. According to unionbusting consultants used by 82
percent of employers faced with organizing drives, “the greatest
achievement is not having [an NLRB election] at all.” To achieve this
goal:
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34 percent of employers illegally fire pro-union workers;
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47 percent threaten to cut wages and benefits; and
- 63 percent interrogate workers in mandatory one-on-one meetings with their supervisors about support for the union.
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SOLUTION: UNION RECOGNITION THROUGH MAJORITY SIGN-UP
The Employee Free Choice Act would require an employer to recognize its
employees’ union through “majority signup,” a process in which workers
present signed authorization cards to demonstrate their choice to
belong to a union. Majority sign-up provides a viable alternative for
workers who typically experience obstacles in the corrupted NLRB
‘election’ process.
AT&T: A case for majority sign-up
At AT&T Mobility, formerly
Cingular Wireless, over 17,000 employees chose to join a union in less
than a year when the company and union agreed to remain neutral and allow workers to indicate their choice through majority sign-up.
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PROBLEM: EMPLOYERS USE LENGTHY APPEALS TO GAME THE SYSTEM
Employers know that if they fire a worker during an organizing effort,
it will likely be years before they are ordered to reinstate that
worker—long after the damage is done.
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In 2005, the median time between the filing of an unfair labor practice charge and a ruling by the NLRB was 659 days.
- The NLRB has the power to issue injunctions to swiftly and
temporarily reinstate a fired worker or remedy other violations, but
rarely uses it. Between June 2001 and December 2005, the Bush-appointed NLRB only used this authority 70
times, a 74 percent decline compared to the years of the Clinton
Administration and a 61 percent decline compared to the G.H. Bush Administration.
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SOLUTION: SWIFT JUSTICE FOR WORKERS
The Employee Free Choice Act would require the NLRB to seek injunctive
relief when it has reasonable cause to believe an employer
significantly violated its employees’ rights through termination,
discrimination, threats, or other illegal acts during an organizing
campaign or first contract effort.
Dynasteel: A case for injunctive relief
In 2001, Dynasteel fired two employees at its Mississippi plant who
were active in the union organizing effort. The NLRB promptly issued a
complaint against the company, and at that point, it could have pursued
an injunction to reinstate the workers. Instead, the agency let the
case proceed through the normal legal channels, and in late 2005, the
Board ordered the company to reinstate the two workers— more than four
years after they were fired, and long after the company had
successfully dampened the workers’ organizing efforts.
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PROBLEM: EMPLOYERS AVOID CONTRACT NEGOTIATIONS
The intent of the NLRA is to facilitate reaching a first contract that
determine wages, hours, and employment conditions. Yet anti-union
employers often drag workers through lengthy negotiations by delaying bargaining sessions,
withholding relevant information, and putting forth bogus proposals.
Even though these tactics are illegal, the law provides no effective deterrents to prevent “surface
bargaining.” In the event the NLRB proves an employer engaged in
surface bargaining, it can only order the employer to return to
negotiations, where typically the cycle repeats itself.
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One year after a successful union election, 52 percent of newly formed unions have no collective bargaining agreement.
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Two years after an election, 37 percent of newly formed unions still have no labor agreement.
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SOLUTION: MEDIATION AND ARBITRATION TO END CONTRACT DELAYS
Under the Employee Free Choice Act, employers or employees can request
mediation by the Federal Mediation and Conciliation Service if they are
unable to negotiate a first contract after 90 days of bargaining. If the parties are unable
to reach an agreement after 30 days of mediation, the dispute is
referred to binding arbitration, guaranteeing that workers will achieve
a first contract within a reasonable period of time.
Champion Homes: A case for mediation and arbitration
Workers at Champion Homes in California formed a union in 2000. After
months of failed negotiations, the union filed charges with the NLRB.
In January 2003, an administrative law judge ordered the company to
bargain in good faith. The company has filed appeal after appeal to
avoid contract negotiations, and as of 2007, the workers are still
without a union contract.
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