Background on Unions and the Need for the Employee Free Choice Act

Updated June 2008

Workers create unions to exercise democracy and power at the workplace. Unions are an essential bulwark, preventing businesses from wielding unlimited power in determining wages, benefits and working conditions for working men and women.

Having a collective voice gives workers protections and opportunities to have some control of their future. Union representation is a vehicle to reduce poverty for workers in low-wage jobs, encourage profit sharing between owners and workers, provide health care and pension benefits for families, improve health and safety in the workplace, advocate economic and social policies that support all workers, and provide workers a role in workplace decisions.

The right of workers to organize unions in the workplace is a building block of a democratic society. This has been true in Poland, South Africa, South Korea, and the United States.

A Brief Labor History Overview

The need for the Employee Free Choice Act must be viewed in the context of U.S. labor history. Two pieces of federal legislation dominate the history of union organizing. The first is the Wagner Act passed in 1935 during a time of great labor unrest. Workers across the country were organizing for changes in working conditions and companies were hiring militias to "maintain order." The Wagner Act was designed to lay out a fair and peaceful process for handling labor disputes. The Act established the National Labor Relations Board (NLRB) and a process for mediating concerns between unions and management.

Twelve years later, management was concerned that labor had too much control under the Wagner Act and organized support to pass the Taft-Hartley Act of 1947. This legislation limited the rights of workers to organize and gave companies a much freer hand in busting unions. Even though the Taft-Hartley Act was bad for unions, workers found ways to organize in part because most people in society recognized the value of unions. Unions continued to grow as a percentage of the workforce until the mid-1950s when the first phases of globalization emerged.

The historic relations between labor and management changed in 1981 when newly- elected President Ronald Reagan fired and permanently replaced striking air traffic controllers. This gave a national green light to employers to permanently replace workers.  Previously, it was legal to permanently replace striking workers, but it was viewed as wrong even within the business community and generally not done.

Starting in the 1970s, there was an unprecedented increase in law firms and consultants specializing in union busting. Companies placed these firms in charge of smashing union organizing drives and used a plethora of legal and illegal approaches to discourage workers from organizing unions. Union busting has now become so widespread that Human Rights Watch issued a full report on the denial of international worker rights in the U.S. Indeed, workers' ability to organize unions in the context of constant employer attacks has reached a crisis point.

Every 23 minutes a worker is fired or otherwise sanctioned for exercising the basic freedom to decide whether to form a union. More than 20,000 workers were fired or victimized annually for trying to form unions during the decade ending in 2003, according to the National Labor Relations Board's annual reports. Many thousands more, too frightened to try to exercise that freedom for fear of losing their jobs, quietly suffer hazardous working conditions, poverty-level wages, and virtually no benefits.

The U.S. Government Accountability Office reported that 32 million American workers, nearly one quarter of the nation's civilian workforce (twenty-five million in the private sector and seven million in the public sector), completely lack legal protections to form unions and bargain collectively. Still, pollsters recently reported that more than 40 million nonunion workers would form a union if they could (Peter D. Hart and Associates, February 2005).

What Happens When Workers Try to Unionize?

Current labor laws permit employers to scare and intimidate workers out of exercising their freedom to unionize by voicing "predictions" that a workplace will shut down if workers vote to organize. The number of employers ordered by the National Labor Relations Board to pay back wages to workers because they violated their right to organize increased 1,600 percent in the past 45 years.

Although U.S. labor law gives workers the legal right to unionize, in the real world employers effectively block that right every day. Current penalties against illegal firing of union supporters are so light that employers can treat them as a small cost of doing business. Even when employees surmount multiple obstacles to unionize, management too frequently (one-third of the time) engages in "bad-faith" bargaining, thus denying workers who have voted to unionize the basic right to a first contract.

Weak penalties for such bad-faith bargaining mean that no effective remedy exists under current law and practice for egregious abuse of workers' rights. The Employee Free Choice Act (EFCA), would effectively address pervasive employer interference with the right of private sector workers to unionize and bargain collectively.

What is the Employee Free Choice Act (EFCA)?

The bipartisan Employee Free Choice Act, with its multi-pronged approach to strengthening workers' rights to organize their workplace and negotiate a first contract, was reintroduced in Congress on February 5, 2007. In the 110^th Congress, the bill has 233 cosponsors in the House of Representatives, including several Republicans, and 46 cosponsors in the Senate. EFCA's original cosponsors are Senator Ted Kennedy (D-MA) and Congressman George Miller (D-CA).

Updated status: EFCA passed a vote in the House 241-185 on March 1, 2007, but it failed the cloture vote in the Senate 51-48 on June 26, 2007.

The Employee Free Choice Act (EFCA) in a nutshell

EFCA is a commonsense approach to restoring workers' freedom to form and join unions. EFCA would ensure that when a majority of employees in a workplace decide to form a union, they could do so without the debilitating obstacles employers now use to block workers' free choice.

It requires an employer to recognize the union once a majority of workers sign cards authorizing union representation. It provides for mediation and arbitration of first-contract disputes and it authorizes stronger penalties for employers who violate the legal rights of workers trying to unionize and negotiate first contracts.

1)      A union would be certified as the bargaining representative of workers once the National Labor Relations Board rules that a majority of workers have signed cards designating it as such.

2)     First-contract mediation procedures can be initiated either by an employer or a union when agreement cannot be reached within 90 days. Failure to reach agreement after 30 days of mediation triggers binding arbitration proceedings.

3)     Stronger penalties would be imposed during an organizing campaign or first-contract drive under the Employee Free Choice Act, which would:

•    Provide for civil fines up to $20,000 per violation against employers found to have willfully or repeatedly violated employees' rights,

•    Increase the penalty to three times back pay for employers who discharge or discriminate against workers.

•    Mandate that the NLRB seek a federal court injunction against an employer when reasonable cause exists to believe that a worker was discharged, discriminated against, or threatened, or a against union when reasonable cause exists to believe that it violated the secondary boycott prohibitions of the act.

With a new Congress in 2009, there is guarded optimism that EFCA may indeed pass. Worker advocates must continue to educate, organize, and mobilize support for the Employee Free Choice Act. For the sake of democracy and basic justice, the religious community in particular and the lay public at large must become champions of workers' right to freely organize together for their common interests.

Many religious traditions have recognized that the freedom to form unions and bargain collectively fall within their concepts of a commitment to justice for all.

Faith Statements

The Church fully supports the right of workers to form unions...to secure their rights to fair wages and working conditions... No one may deny the right to organize without attacking human dignity.

--National Conference of Catholic Bishops' 1986 pastoral letter, Catholic Social Teaching and the U.S. Economy

Jewish leaders, along with our Catholic and Protestant counterparts have always supported the labor movement and the rights of employees to form unions for the purpose of engaging in collective bargaining and attaining fairness in the workplace. We believe that permanent replacement of striking workers upsets the balance of power needed for collective bargaining, destroys the dignity of working people, and undermines the democratic values of this nation.

--Central Conference of American Rabbis' Preamble to the Workplace Fairness Resolution adopted at the 104th Annual Convention, 1993

Free collective bargaining has proved its values in our free society whenever the parties engaged in collective bargaining have acted in good faith to reach equitable and moral solutions of problems dealing with wages and working conditions.

--Christian Methodist Episcopal Church's Discipline of the CME Church, 1982

More statements from denominational and other faith groups