Local First: A Strategy For Employee Free Choice

Ashok Kumar and Joel Feingold

By Ashok Kumar and Joel Feingold

Organized labor is steadily coming to terms with the Obama Administration’s failure to push the Employee Free Choice Act (EFCA). Despite labor’s unprecedented campaign to put Obama in office, EFCA remains on the legislative backburner — and the pan is beginning to burn. 

Major provisions have reportedly been stripped from the bill in behind-the-scenes talks, including EFCA’s real change to the National Labor Relations Act (NLRA): a requirement that bosses recognize and negotiate with the union when a plurality of workers in a shop sign union cards.

But even if EFCA remains stymied on a federal level, workers and activists across the country have succeeded in realizing EFCA-type provisions by targeting state and municipal governments.

By securing free choice” for employees at the local level, this strategy gives activists and workers successes to point to as the debate over federal labor policy continues.

Ending Captive Audiences

EFCA is labor’s answer to the captive audience meetings so typical of NLRA elections — closed-door, mandatory meetings in which bosses tell workers standard lies about unions. Indeed, a recent Cornell University study of 400 campaigns found that 92% of private-sector employers forced employees to attend closed-door anti-union indoctrination sessions.

But workers and activists operating at the local level recently won bans on these closed-door meetings — a major step in the fight for free choice. In June, Oregon Governor Ted Kulongoski (a Democrat) bowed to the state AFL-CIO’s campaign for a Worker Freedom Act. Now law, the Oregon Worker Freedom Act makes it illegal for bosses to punish workers who skip anti-union meetings.” 

While the Oregon example clearly demonstrates the virtue of pushing for EFCA-type laws on the local level, it also shows just how far the labor movement still has to go to win real free choice. Kulongoski signed a weaker compromise draft of the original Worker Freedom Act — an all-out ban on captive-audience meetings.

Oregon’s labor establishment still sees the law as a major victory. Graham Trainor, a political organizer with the Oregon AFL-CIO, calls the law model legislation” with the potential to influence national policy.

This is an essential tool in the organizer’s tool belt and will absolutely have a broad-based impact on private sector organizing,” Trainor said. The potential for organizing is explosive and is having a chilling effect on employers. That’s why big business is challenging the law in court.”

Workers and activists in Oregon are not alone in pushing the Worker Freedom Act. Bowing to concerted union pressure, the state legislatures of New Hampshire, Michigan, Vermont, Colorado, and West Virginia all passed similar laws in recent years. However, the Oregon movement stands alone in forcing a form of the Worker Freedom Act onto the books.

Banning closed-door meetings is only one front in the broader battle for free choice. Actual face-to-face talks with workers are the central tool in any organizing drive. Union organizers desperately need access to operate in increasingly sealed-off shop floors.

State and local unions across the country have made organizer access a legislative priority. In California, laws require that agricultural firms release the names of all their workers to organizers — and further allow organizers access to fields and parking lots for an hour before workers start, an hour after workers finish, and up to an hour during the work day. This California model was signed into law in 1975 after the UFW staged a series of strikes, marches, and militant actions. But the weakened state of the UFW renders these provisions largely theoretical.

Although access-to-organizing questions remain unsettled in the vast majority of the U.S., the California example can serve as a model for statewide movements to facilitate farm-worker organizing elsewhere.

Local Card Check

Nineteen states recognize comprehensive or limited card-check for public-sector workers. But workers and activists have a much harder fight for local and statewide card check in the private sector. The NLRA preempts local governments’ power to create new legal avenues for organizing — with crucial exceptions. Federal preemption does not apply to types of work excluded from the NLRA, industries like farm work and tribal casinos.

In 1999, UNITE-HERE (the hotel and garment workers’ union) forced California Governor Gray Davis to insert access-to-organizing provisions into gambling compacts with tribes. Unions won organizer access and card-check in 2004 compacts with the Pala and Viejas tribes; workers in these casinos have since organized and won first contracts.

However, in 2007, UNITE-HERE attempted to affix card-check neutrality agreements to the state’s gambling compacts with some of the wealthiest tribes in California. Schwarzenegger refused to include these provisions in the renewed compact.

Most recently, workers and activists in Hawaii and California forced legislatures to establish card-check neutrality for farm work, require binding arbitration for first contracts, and increase fines on employers who violate right to organize laws — many core EFCA provisions. 

The governors of Hawaii and California vetoed both bills, but the mold for winning local EFCA campaigns was in place.

Independent Contractors’ and Card Check

Another path for local card-check lays in the so-called independent contract” sectors— like truck- and taxidrivers and home healthcare workers. Laws in states and some municipalities allow the recognition of an employer of record” with whom independent” workers can collectively bargain.

Home-care workers successfully exploited this employer of record” provision. In California, 100,000 home-care workers organized using this provision in the last ten years; in Oregon, 13,000 workers have done the same since 2000. Twenty thousand home-care workers in Illinois won card-check rights after such a law passed in 2003

Another even more local example provides further legal ammunition for local card-check campaigns. Dane County, Wisc., acceded to home-care workers’ demands in 2006 for a Home Healthcare Commission — a legal structure allowing home-care workers to organize via card-check.

Within a year, nearly 1,000 workers in this sector negotiated a first contract. Mary Foy, an SEIU organizer during this campaign, called this path to local card-check a legislative strategy coupled with a strong worker organizing campaign.” Foy continued:

[This two-prong strategy] led to our success. The workers wanted a union but the legal infrastructure wasn’t there. Without the dues-paying structure of the [Home Healthcare] Commission, SEIU surely wouldn’t have funded the campaign, and workers wouldn’t have had a central body to negotiate a contract with.

Public Workers’ In Semi-Private Schools

Bowing to teacher unions’ pressure, a few states expanded the definition of public worker” to include state-funded institutions like charter schools.
Unions insist that charter school teachers — paid with government dollars — fall under public employee laws and are thus eligible for card check. The Illinois Federation of Teachers won such a bill this summer.

In 2007, Governor Deval Patrick of Massachusetts signed the Written Majority Authorization Law — giving teeth to a 2000 bill requiring card-check in all charter schools in the state. A year later, the American Federation of Teachers successfully organized a charter school in Massachusetts.

Tom Gosnell, president of the Massachusetts branch of the American Federation of Teachers, said, Winning contracts at charter schools without card-check is nearly impossible. The schools stall until the summer break, and by the fall they’ve replaced the faculty and the campaign is dead.” He emphasized the dual benefits of charter school card-check legislation — making organizing possible and discouraging privatization.

The Real Deal: Local Card-Check In The Private Sector

Full-on private-sector card check has also been explored at the municipal level, but theoretically, it is only possible in states that allow cities robust home-rule authority.

However, workers and activists occasionally work around limited home-rule authority by arguing that cities have a proprietary interest” in the marketplace rather than a regulatory” one. A few cities that have adopted this worker-activist stance have managed to circumvent circuit-court decisions limiting municipalities’ labor law authority.

Proprietary interest” can include the issuing of bonds for tax incremental funding, grants, loans, contracts, or as a precondition to leasing of public land. When establishing proprietary interest,” local laws can include card-check as well as third-party mediation arbitration provisions.

In 1998, San Francisco became the first to pass such an ordinance. The law affected hotels and restaurants exclusively — and enabled workers in at least half a dozen hotels to organize and win their first contracts. Since that time, union density in San Francisco hotels skyrocketed from 65% to 90%.

Over a dozen cities and counties enacted similar laws over the last decade — including Pittsburgh, San Jose, and Washington D.C. Workers and activists should heed these examples of actually existing card-check — because it’s clear that the campaign for a strong federal EFCA has to first be waged locally: state-to-state, city-to-city, and workplace-to-workplace.

This article originally appeared, in much shorter form, in the September issue of Labor Notes.

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Ashok Kumar is a student at the London School of Economics. Joel Feingold is a community organizer in New York City.
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