Between the Lines Q&A

A weekly column featuring progressive viewpoints
on national and international issues
under-reported in mainstream media
for release Aug. 14, 2009

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Key Provision of Employee Free Choice Act in Jeopardy

 RealAudio  MP3

Interview with Mark Brenner,
director of Labor Notes,
conducted by Melinda Tuhus


In late July, Democrats in Congress signaled they may drop their support for a key provision of the Employee Free Choice Act -- legislation the labor movement has said is its top priority. The provision in question, referred to as "card check," would require an employer to recognize a union among its workers if a majority of them simply sign union cards, and would not require a secret ballot election now mandated under the National Labor Relations Act. While not ruling out a secret election, the legislation would simply shift the decision-making power about the union ballot process from the employer to the workers.

Under current law, tens of thousands of employees are fired or discriminated against every year for supporting a union. An estimated 60 million Americans would like to join a union, but are unable to do so under the current system. The nation's major corporations, trade associations and conservative groups have vowed to fight the Employee Free Choice Act and pledged to spend millions of dollars to defeat its passage in Congress.

Between The Lines' Melinda Tuhus spoke with Mark Brenner, director of Labor Notes, a media and organizing project that publishes a monthly magazine. Since its founding in 1979, Labor Notes has been bringing together union activists, leaders and rank-and-file members to strengthen the labor movement -- from the bottom up. Here, Brenner explains where the Employee Free Choice Act now stands and how employers or their workers can benefit, depending on which provisions make it through the legislative process.

MARK BRENNER: This is a real example of the Big Lie, where something is repeated over and over again and people start treating it like it's true. And that's exactly what the corporate campaign against the Employee Free Choice Act did -- it just repeated this story that it was taking the secret ballot away from workers enough times that it became the story line, and nothing could be further from the truth. Now, this is a real debate right now in Congress, this is a real question mark for folks in the labor movement, about whether or not the Employee Free Choice Act will actually strip out the provision that will let workers sign up via a majority of cards, or not. And I gotta say, for folks like me, who are far from the halls of Congress, it's a real mystery what's happening on Capitol Hill right now. All the signals we're getting from the media are that key Democratic legislators have indicated they're not willing to maintain the provision for a majority sign-up via union cards -- that they're going to force secret ballot elections, that they're going to revert to the way that things are currently done.

I actually think it really misses what's the key issue in the debate about union organizing in the 21st century. The issue is not so much whether we have a secret ballot election, or whether we signup via card majority. The issue is really the unmitigated, unfettered employer opposition to union organizing that's happening in this country right now. If you start talking about forming a union in your workplace, I guarantee you there will be a reign of terror that comes down on your head by your employer -- that's just how it works in America today. There are over 10,000 people every year that are getting fired for forming unions or trying to form unions in this country, and there's virtually nothing that the law does to stop that. So what can the law do to level the playing field?

BETWEEN THE LINES: So, aside from whether card check will be in or out of the final legislation, there are other provisions in the EFCA that could help level the playing field for workers, like increasing penalties on employers who violate the law and I think speeding up the process, because so often an employer can drag things on for so long that the union drive just dies. Can you describe some of these provisions?

MARK BRENNER: So, a couple of things that the EFCA is trying to do is to at least balance the playing field somewhat. The first part we've talked about, which is to implement a card check provision which allows people to do majority signup -- that would right away fix some of the imbalance. Second, it actually increases the fine that can be levied against violators -- employers who violate the law -- up to $20,000 per violation. That's a big increase, although, frankly, if you're a multi-million if not multi-billion dollar corporation, that would still seem like chump change to keep a union out, so even upping the number doesn't necessarily create enough of a disincentive.

It allocates triple back pay for workers who are fired. Right now, the way the law works is: If you get fired for union activity, and some time three years down the line, the Department of Labor actually hears your case and all the appeals are settled and you get a favorable ruling that says, yes, you were fired for union activity, the company is obligated to give you back pay for all the years you were off the job -- three years in my example -- minus any money you've earned in the meantime. So, if you get fired from a job and you go out and get another job, the company is not going to have to pay you virtually anything. So, of course, there's a tremendous incentive for anti-union employers to fire some of the strongest union supporters in any organizing campaign. This actually is going to triple the backpay requirements that companies will have to pay so it will try to create more of a financial disincentive for companies to violate the law and to fire workers.

The other thing, which in some ways is even more important, is it would give the National Labor Relations Board the right to reinstate workers immediately who are believed to have been fired because of their support for the union. Right now, you get fired and you have to go through appeal and appeal and appeal, and you don't get reinstated until after all the appeals are heard. This would actually almost presume that you were fired for union activity and have you reinstated immediately and sort of level the playing field in that way -- so is another way of trying to take out the intimidation factor that firing pro-union employees has.

Another big problem we have in America today when you try to form a union is that even if you win -- even if you surpass all of these hurdles that I mentioned -- and you succeed in getting your vote, and you win your vote, companies are under no obligation to settle with you, to bargain in good faith and try to reach an agreement. So many, many, many union workers organize, win a secret ballot election and never get a first contract, because employers just refuse to bargain with them. And so the Employee Free Choice Act would have a 90-day window in which, if both sides cannot reach an agreement, a federal mediator would be appointed and there would be mediation. If that doesn't work, then the case would be sent to binding arbitration and then an arbitrator would reach a decision about what the first contract for the union would look like.

Now, what will actually survive the legislative process, your guess is as good as mine. But at least from our hope, from anybody's who pro-union in this country, is that it's going to look something like the original bill and keep some of the key provisions which are really trying to put a check on companies that are engaged in an unmitigated, all-out assault on any worker in this country that wants to try to exercise their right to form a union.

For more information on the Employee Free Choice Act and other labor issues, call the Labor Notes office in Detroit at (313) 842-6262 or visit the group's website at

Related links:

Melinda Tuhus is a producer of Between The Lines, which can be heard on more than 45 radio stations and in RealAudio and MP3 on our website at This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines for the week ending Aug. 28, 2009. This Between The Lines Q&A was compiled by Melinda Tuhus and Anna Manzo.

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