Freedom of choice

Congress is considering changing a federal law that could have a huge impact for workers in the capital region and across the United States. Meet the Employee Free Choice Act, an amendment to the National Labor Relations Act of 1935. If EFCA gets enough votes to pass the Senate and House and President Barack Obama signs it into law, working women and men will have a new way to enter and stay in labor unions.

Current labor law provides a secret-election ballot for workers who wish to join a union. It’s a process open to intimidation by employers, as workers at Blue Diamond Growers, the almond-processing plant in Midtown, discovered in 2004. EFCA combats such intimidation in three ways: It gives employees a choice between a secret ballot and checking a union card, imposes stiff fines for employers who violate employees’ right to organize and creates a binding, 120-day timeline for negotiating a first-year contract.

Frank Garcia, father of one and a 12-year warehouse employee with Blue Diamond, knows something about how the current secret-ballot process to join a union works. After the International Longshore and Warehouse Union Local 17 began an organizing drive at Blue Diamond in 2004, the intimidation began.

“Company consultants arrived before voting began,” Garcia recalled. “They threatened us that a vote for the union would mean that our jobs would be replaced if we went on strike. The consultants met first with groups of 50 workers. Then they met with groups of five to 10 people. That would not have happened with the Employee Free Choice Act.”

The National Labor Relations Board directed the drive and the secret elections for 600-plus workers. During the four-year campaign in Sacramento, Blue Diamond management harassed and fired some of Garcia’s co-workers. In fact, an NLRB judge ruled that management was guilty of more than 20 violations of U.S. labor law during the AFL-CIO/ILWU campaign.

“There were sometimes five consultants at all times at the plant talking individually and in small groups to workers,” said Agustin Ramirez, lead organizer for Local 17. “The consultants would not tell workers their full name; we only have a couple of first names.”

Blue Diamond defeated the campaign to unionize the plant. When contacted by SN&R, Susan Brauner, public affairs director for Blue Diamond, declined to name the consultants or what they communicated to employees.

The Blue Diamond example mirrors a national trend, according to researchers at the nonpartisan Center for Economic and Policy Research based in Washington, D.C.

“More than one-fourth of all union-representation elections in the 2000s have been marred by an illegal firing of a pro-union worker,” write CEPR economists John Schmitt and Ben Zipperer. “We found that the chance of being illegally fired increased sharply in the late 1970s and in the 1980s especially. The chance fell slightly in the ’90s but then picked up again in recent years.”

EFCA would address the potential for intimidation in the secret-ballot process by offering employees the option to check a card showing their support to unionize. The card check would replace the NLRB secret-ballot elections. If a majority elects to sign cards, negotiations between the union and the company begin.

Among EFCA’s opponents are the Alliance to Save Main Street Jobs, the Coalition for a Democratic Workplace and the Workforce Fairness Institute.

“The debate over EFCA should not be about whether unions are good or bad, but what the fairest process is for employees to decide whether they want a union,” according to a report by the U.S. Chamber of Commerce, which belongs to the Alliance, along with the Associated Builders and Contractors, International Council of Shopping Centers, Retail Industry Leaders Association, HR Policy Association, American Hotel and Lodging Association and the Real Estate Roundtable. In the capital region, the Sacramento Metro Chamber also opposes EFCA.

“The Sacramento Metro Chamber of Commerce doesn’t oppose employees organizing into unions,” said chamber president and CEO Matt Mahood. “We just think that the current process of secret-ballot elections works well. Employees should maintain their free right to choose by participating in secret-ballot elections. That avoids coercion and intimidation.”

In fact, EFCA gives employees two choices. They can choose to use the secret ballot, and risk possible repercussions, or sign a union card. Crucially, the choice would be theirs to make. Furthermore, employers would be held financially accountable for their actions against employees who opt in or out of unions under EFCA. Provisions of the bill would hold employers liable for penalties of up to three times the back pay of an employee who is “illegally discharged or discriminated against during an organizing campaign or first contract drive.”

Sacramento County Supervisor Roger Dickinson, a Democrat, and Garcia were two speakers calling for the passage of EFCA at a protest of 50 people outside the entrance of a Rite Aid drugstore in West Sacramento last month. Protesters from the Local 17, Service Employees International Union Local 1000 and others marched and chanted, “Hey, hey! Ho, ho! Rite Aid is moving mighty slow.”

The slowness in question is Rite Aid’s approach to contract talks with more than 500 workers at its distribution center in Lancaster, north of Los Angeles. There, in NLRB-supervised elections, employees voted to join the AFL-CIO/ILWU Local 26 to represent them on March 21, 2008.

However, this was the proverbial end of the beginning, according to Ramirez. He says Rite Aid is dragging its feet in contract talks, trying to “run out the clock,” much as a basketball or football team hangs onto the ball at the end of a game to keep the other team from scoring.

Cheryl Slavinsky of Rite Aid disagrees with Ramirez’s assessment of progress in the contract talks. “We have been bargaining in good faith with the ILWU local representing our distribution center in Lancaster, California, and have offered to stay at the table all night to work out our differences, but the union so far has not accepted that offer.”

Under NLRB law, new unions and employers have a year to reach an agreement. As the second year with no agreement begins, the NLRB permits workers to file a petition to decertify their new labor-union representation. That outcome opens the door to defeating the union by ending contract negotiations, exactly what the Lancaster workers face, beginning this March 21.

Under EFCA, new unions such as Local 26 in Lancaster would have 10 days in which to notify an employer to begin collective bargaining. In turn, EFCA provides an initial 90-day period for negotiations. If unable to reach an agreement, either side can contact the Federal Mediation and Conciliation Service to help achieve a resolution. If mediation fails to result in an agreement during a 30-day period, the mediator would refer the dispute to an arbitration panel empowered to reach a settlement and impose a binding, two-year agreement on both parties. In short, EFCA imposes binding arbitration on employers and new unions. The NLRB has no such 120-day timeline for negotiations now.

Rite Aid’s Slavinsky questioned the need to amend the current NLRB law. “We believe that our associates have the right to choose to be represented or not represented by a union,” she said. “We just think that it’s fair for them to vote by secret ballot, just as all of us vote by secret ballot for the elected officials who represent us.”

“That is a false statement and an un-American concept of secret voting,” said Bill Camp, executive secretary of the Sacramento Central Labor Council. “The NLRB law, as interpreted by the courts, allows employers to have their consultants pull employees into mandatory meetings before the secret-ballot elections. Employers can fire employees who do not attend the meetings. Meanwhile, the union is not allowed to speak with employees at the workplace.”

At the Rite Aid protest in West Sacramento, Ramirez; Dean Murakami, president of the Los Rios College Federation of Teachers Local 2279, AFT/CFT; Karl Neubuerger, executive vice president with Unite Here Local 49; and Gary Passmore, spokesman for the Congress of California Seniors; went inside to see the drugstore manager, Keith. They gave him a petition in the form of a valentine, signed by the protesters, that read: “We hope you’ll find it in your heart to stop union-busting, start negotiating, and respect the right of workers to join a union. It’s time to stop attacking employees and start solving problems together.”

Meanwhile, on Capitol Hill, California’s two Democratic senators have different stances on EFCA. Sen. Barbara Boxer backs the bill, and Sen. Dianne Feinstein is wavering, according to Ramirez. Boxer and Feinstein declined SN&R’s repeated requests for comments.

“The California Labor Federation spoke with Sen. Feinstein recently,” said Ramirez. “She said the current [NLRB] system is adequate and to give her counterexamples.”

The state labor movement is doing that, gathering letters from workers with the Sacramento Central Labor Council, AFL-CIO and other such councils. Art Pulaski, executive secretary-treasurer of the California Labor Federation, urged Feinstein to “fully support the Employee Free Choice Act as she has in the past and, along with Sen. Boxer, play a leadership role in moving it to the desk of President Obama as soon as possible.”

Organized labor needs to convince Feinstein and 14 other Democratic senators to support EFCA to avoid a filibuster.

Against that backdrop, unions are growing, a recent development. According to the U.S. Labor Department, 12.4 percent of the nation’s workers were in unions in 2008, or 16.1 million members, up 0.3 percent from the previous year. In 1983, 17.7 million workers were in unions, or 20.1 percent of the workforce.

Rep. George Miller introduced House Resolution 800, EFCA, in January 2007. The bill passed the House with a vote of 241-185 four months later, with support from Rep. Hilda Solis, President Obama’s pick for labor secretary. The Senate of the 110th Congress voted 51-48 for EFCA. However, the bill failed to get a filibuster-proof 60 votes and died.

As a senator, President Obama co-sponsored EFCA, which was just reintroduced in both houses of the 111th Congress. “We need to level the playing field for workers and the unions that represent their interests, because we cannot have a strong middle class without a strong labor movement,” he said in a videotaped address to AFL-CIO leaders in Miami recently.

Whether the bill can muster a filibuster-proof majority remains to be seen. For struggling workers hoping to stay afloat in a foundering economy, change can’t come quickly enough.