By Katherine V. Stone, Professor of Law, UCLA School of Law. Stone teaches labor and employment law. The following piece will appear in a forthcoming report entitled "Academics on Employee Free Choice: Multi-Disciplinary Approaches to Labor Law Reform," to be published next month by the UC Berkeley Labor Center (John Logan, ed).
Will the enactment of the Employee Free Choice Act increase unionization in the United States? There is widespread agreement that it will. It seems obvious that the provision in EFCA that would give unions representation rights if they obtain a majority of cards would make it easier for workers to organize and make it more difficult for employers to intimidate workers during organizing drives. Workers could engage in card solicitation before employers even knew a union drive is going on. Under the current practice, the employer is notified of a union campaign quite early in the process and is given a lot of time and latitude to turn workers against the union. Employers have been very inventive in finding legal and illegal means to "persuade" workers to vote no. Under EFCA, employers would have less opportunity to saturate a workplace with anti-union propaganda or engage in other coercive practices. Thus it is indisputable that EFCA would change the dynamics of organizing.
EFCA would also have another more subtle but powerful effect on organizing. By permitting unions to be certified on the basis of a majority card showing, it would give unions legitimacy in their organizing efforts and delegitimize employer efforts to stymie them. For decades, the labor law has been interpreted to give employers a role in the organizing process by treating them as "parties" to the campaign. As "parties," employers are entitled to campaign vigorously, to require attendance at anti-union speeches, and to use videos, images, sound systems and other props to communicate their point of view. However, there is no language in the statute that requires such an expansive interpretation of employer rights. Indeed, there is a good argument to be made that whether or not workers decide to form a voluntary association is not the employer's legitimate concern. EFCA would not remove the employer's role in unionization efforts altogether, but it would confine the employer to a marginal one. That is because even if the employer knew of the campaign and choose to weigh in, EFCA's majority card check rule would convey a message that workers' decision whether or not to unionize is their decision alone. This message would be a powerful antidote to whatever anti-union propaganda an employer disseminates.
Does EFCA authorize an undemocratic process? Not necessarily. Even with EFCA, there is still a role for elections in two situations. First, there can be an election if employees want one. Unions could make this option readily available under EFCA. Currently, some unions organize by using dual-signature cards in which workers are presented with a two-part form that has two signatures lines. One part states that the worker would like an election be held and the other states that the worker wants to be represented by the particular union. The worker is given a choice of signing one part of the form, both parts, or neither. If unions utilize this type of form under EFCA, it would preserve the election option when a majority of workers wanted one, and would eliminate later claims that workers had been mislead when they signed cards.
Second, under EFCA employees or an employer can request a decertification election after the union has had a chance to establish itself. In this sense, EFCA permits elections but sets a different default rule. Under EFCA an election takes place after the union is certified, and the choice then is whether to keep the unionized status quo or reject it for a non-union workplace. In contrast, the existing rule makes the default status quo no union and requires an election to alter it. Because default rules matter, EFCA would affect outcomes but would not necessarily be less democratic.
There is another sense in which EFCA is not necessarily undemocratic. At present, the National Labor Relations Board (NLRB) takes the position that elections are a more reliable indicator of employee choice than cards, but it has never rejected the use of cards altogether. The NLRB's job is to ascertain employee free choice in order to decide whether to certify a union as a representative of a bargaining unit. Because there is a structural disparity of power between an employer and employees, and because employees are economically dependent on their employers, the Board has long recognized the danger of coercion in the election process. When an employer engages in egregious unfair labor practices during an organizing campaign that are so poisonous to the election environment that free choice becomes impossible, the Board has historically permitted a card majority to substitute for an election as a mechanism to determine the presence of majority support. That is, the Board has used card majority certification to counteract the impact of coercion. In 1969, in a case called NLRB v. Gissel Packing, the Supreme Court approved this use of cards. In doing so, the Court reasoned that cards are not inherently unreliable, nor are they undemocratic.
Indeed, in one important respect, the Labor Board's own election rules are structured to make a card majority a more reliable indicator of majority sentiment than elections. Under long-standing NLRB doctrine, an election can only be won if a majority of those voting support a union. This does not guarantee that the union has a mathematical majority. On the other hand, to win a majority with cards, a union must have a mathematical majority of the entire workplace. The disparity in treatment of cards and elections makes cards a better barometer of majority sentiment.
Why then has the NLRB historically preferred elections? I believe it is because the notion of majority in the statute means more than a simple mathematical majority - it is a symbolic affirmation of the legitimacy of the outcome of the exercise of employees' choice. With EFCA, a card majority would similarly signify not only a symbolic, but also an actual, exercise of employee choice.
Is EFCA good social policy? I would say definitely yes. Unions have historically been a major force for progressive social policies. Unions have been key elements in the political coalitions that have promoted civil rights, health care reform, food stamp programs, pension protection, minimum wages, affordable housing, and other valuable social programs. As the largest voluntary organization in the country, unions are the voice of the working and disadvantaged population in the national political arena. Without unions, those important parts of the population would be silenced.
Union density has declined in the United States to historically low levels, especially in the private sector. While there are many causes, one important cause is the nature of the labor laws. Over the past three decades, numerous interpretations of the labor laws have made it increasingly difficult for unions to organize, and have bogged down the election process with crushing delays. Thus EFCA represents a crucial measure to turn the tide and enable unions to regain their rightful place in American workplaces and American society.