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State Ballot Initiatives Ensure Employee Free Choice Act Stays Dead

Michelle Chen

An understated anti-EFCA advertisement courtesy of the anti-union organization "Center for Union Facts."

For politicians in several states, it’s not enough that the Employee Free Choice Act (EFCA) is dead in the water on Capitol Hill. Next Tuesday, they’ll be pressing voters to hammer another preemptive nail in the coffin, with deceptive ballot initiatives that purport to defend, of all things, workplace democracy.

On Tuesday, ballots in Arizona, South Carolina, South Dakota and Utah will include initiatives that apparently aim to prevent the moribund EFCA from being implemented on the state level. 

Long a focus of labor’s advocacy in Washington, EFCA would strengthen unions’ power primarily by allowing streamlined recognition through a card check vote — a simple majority sign up that would circumvent the notoriously corruptible formal election process under the National Labor Relations Board.

On its face, the language of the secret ballot provision may seem innocuous enough. Utah’s proposed Amendment A, for instance, would alter the state constitution to ensure secret ballot elections for unionizing drives, adding employee votes to a general electoral mandate. Why is this needed? To protect workers from coercion and trickery by evil union organizers, of course.

But South Dakota’s Vote No on K” campaign explains that state’s secret ballot amendment initiative as both paranoid and nefarious (not to mention funded by shady out-of-state influence peddlers):

It was written to undermine a possible change to federal law, the Employee Free Choice Act — which Congress hasn’t even voted on. In other words — the supporters of Amendment K are asking South Dakota voters to un-do something that hasn’t happened…

The cold hard truth is — South Dakota workers are the lowest paid workers in our United States. And according to the Bureau of Labor Statistics, South Dakota has the sixth highest work place death rate per capita in our United States. Still, the supporters of Amendment K are asking voters to help them make it harder for workers to form unions and bargain for better wages, benefits, and safer working conditions — and to foot the bill for an expensive federal lawsuit.

The anti-EFCA initiatives are not surprisingly clustered in so-called right to work” states, which already curtail unions’ leverage to organize a given workplace.

Though it’s been spun as an assault on workers’ rights, in reality, card check simply gives organizers more leverage in the voting process. ITT’s coverage of the struggle to unionize at the Jimmy Johns fast food chain illustrates how the regular election process could be perverted.

Organizers reaching out to some 200 workers at 10 Jimmy John’s sandwich shops in Minneapolis originally got 60 percent of workers to endorse a union. But once the NLRB process was set in motion, the employer’s aggressive anti-union campaign ended up whittling down the pro-union majority and killing the drive. It’s just one more example of how bosses in low-wage sectors might deploy capital and management to hire union-busting consultancies, bribe employees, or crack down on organizers.

If card check were all that was needed for union certification, the process would allow unions to bypass the management terror gauntlet. So when employers fight for workers’ right” to a secret ballot, they re really lobbying for their right to carry on a rich tradition of harassment and intimidation. According to Center for Economic Policy and Research’s (CEPR) report on data on workplace organizing drives:

If we assume that employers target union organizers and activists, and that union organizers and activists make up about 10 percent of pro-union workers, our estimates suggest that about one-in-five union organizers or activists can expect to be fired as a result of their activities in a union election campaign.

Even after we adjust for the increase in organizing campaigns not built around NLRB elections, our calculations suggest that more than one-in-seven union organizers and activists are illegally fired while trying to organize unions at their place of work.

To make sure that the corporate version of workplace democracy prevails, four states will have a chance to vote this Tuesday on legislation that appears to have no real impact other than to add another legal obstruction to block EFCA.

Granted, EFCA would be no panacea. As Labor Notes points out, organizers still face an array of political and bureaucratic obstacles to unionizing, with or without card check. But the current system, under a flaccid lame-duck Congress, doesn’t even allow for a simple logistical reform that might help restore some political balance to unionization campaigns. Somehow, big business isn’t happy with those nightmarish odds of getting canned for trying to organize. They may not be satisfied until they cut a worker’s chances for forming a union down to zero.

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Michelle Chen is a contributing writer at In These Times and The Nation, a contributing editor at Dissent and a co-producer of the Belabored” podcast. She studies history at the CUNY Graduate Center. She tweets at @meeshellchen.

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