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Real Freedom of Choice

The Employee Free Choice Act is a worthy, if flawed, response to a fundamental inadequacy in federal labor law: Too often, workers are not free to choose whether or not to join a union. No side is always in the wrong here; the freedom to choose has been threatened by bullying, coercion and manipulation by both unions and management. But it’s the latter most often at fault, since management has more power to stop or delay a move toward unionization than workers and organizers have to push it through.

The federal government shouldn’t join in the fight — only make sure it’s a fair one. Lately, it has done a lousy job of that basic obligation.

Even Senator Arlen Specter would agree with that last point. The Republican-turned-Democrat can point to his objections to EFCA as proof of his boast that he isn’t going to toe the line of his new party, which had made passage of the bill a top priority. But in a 2008 policy essay in the Harvard Journal on Legislation, co-written with Eric Nguyen, Specter excoriated the National Labor Relations Board for issuing “toothless remedies” and allowing endless and harmful delays. “The law today leaves organizers, employers, and employees in limbo during a drawn-out and combative representation contest,” they wrote.

For an example of how management can abuse the process, look no further than the way some in the kosher meat industry have responded when their workers have tried to unionize. And bad behavior by management can go unpunished for years, with little consequence. Washington Monthly recently detailed how Rite Aid used firings and harsh tactics to intimidate workers into rejecting a union and then, when they didn’t, stalled mercilessly on negotiating. The NLRB’s penalties were meaningless to the powerful corporation, “the equivalent of punishing shoplifters by asking them to put the merchandise back,” wrote T.A. Frank.

EFCA seeks to remedy these injustices by dramatically increasing penalties for violating labor laws and allowing either party to seek federal mediation if contract negotiations don’t make progress. But it goes one step further, and here is where the flaws of the bill become apparent.

Currently, after a majority of workers sign cards requesting union representation, employers are allowed to ask for a secret ballot election to affirm the results. There’s no incentive for a quick vote, and it’s during this long campaign period that employers can abuse the process. So the so-called “card check” provision in EFCA does away with voting and allows for immediate certification if a majority of workers sign union cards.

In eliminating the secret ballot, the “card check” provision addresses one imbalance by going too far in the opposite direction. It also provides a great rhetorical tool for the Republicans, and some Democrats, eager to destroy the bill. But the choice between dumping EFCA and ditching secret ballot elections is not a good one, which is why we should look for alternatives that would remedy this flaw while keeping alive this important labor legislation.

Lawmakers should seek a compromise that shortens the election process to reduce the window for intimidation and guarantees confidentiality for workers. Harvard law professor Benjamin Sachs has offered one such compromise, which would allow employees to safely vote away from the workplace with the technology already used in union elections for airlines and railroads. Under Sachs’s proposal, employers would not be told of an upcoming election but would be allowed to challenge the results afterward. That may need some adjustment; after all, doesn’t management have some right to make its case before workers decide?

But the contours of compromise are there. Truth is, union organizers should have nothing to fear from a secret ballot, if their cause is just and the process fair. Allowing workers to vote freely, absent coercion from bosses or organizers, is the best way to create a more harmonious relationship between the two sides to provide the dignity and security workers deserve, and the flexibility owners need in this challenging economy.

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