EFCA Blocked by Filibuster
A vote today on the Employee Free Choice Act (EFCA) was blocked by a Senate filibuster. The final vote was 51-48 in favor of the bill. 60 votes are required to defeat a filibuster.
In a recent ACS Issue Brief, Neutrality Agreements and Card Check Recognition: Prospects for Changing Labor Relations Paradigms, Professor James Brudney argues that current labor law hinders unionization:
The stark inequality between employer "incumbents" and union "challengers" regarding rights of access to, or speech aimed at, the voters would be unthinkable in a political election setting. Individual employees attending sophisticated captive audience speeches, or participating in one-on-one encounters with their immediate supervisors, understandably may feel intimidated if not coerced by repeated oral, written, and electronic communications linking "union presence" to layoffs, plant closings, and permanent replacement during a lawful economic strike. Even if an employer does not immediately follow through on such predictions, their repeated expression is likely to affect employees as they contemplate the range of subtler deprivations that union supporters may face in the future. . . .Opponents of neutrality often counter that if employees cannot hear from the employer, they will not be able to make a suitably informed and reasoned choice. That contention invites doubt on two grounds. One is that the employer already has the opportunity and motive to present arguments against unionization before a union appears, and is likely to have done so over months, if not years. A second is that the optimal time for informed choice about union representation will occur during contract negotiations, when employees can see how a collectively bargained workplace actually would look.
Supporters of elections also worry that individuals sign cards without giving the matter enough thought, or from fear of criticism by fellow employees. It is not at all clear that workers succumb so readily to indifference or peer pressure. Assuming they do, however, a union seems unlikely to retain employees' backing in negotiations unless it can persuade them that its bargaining proposals deserve majority support and even application of group pressure if warranted.
EFCA would have addressed many of Professor Brudney's concerns by providing a streamlined "card check" process for worker unionization.