The March 1 House of Representatives vote for the Employee Free Choice Act (EFCA) was an important milestone for legislation intended to help employees form and join unions, but that vote was as close as this bill would get to becoming law for the next two years. Even if the Senate had passed EFCA, neither house would have had enough votes to override the veto that was certain to come.
So does this put worker collective bargaining rights in limbo?
Absolutely not! EFCA is not the only game in town.
We can strengthen worker rights to form unions and bargain collectively by enforcing the most underused law on the books — the National Labor Relations Act (NLRA).
Many rightly complain that the National Labor Relations Board does not protect workers who want to organize unions. The weak, cookie-cutter remedies the Board seeks violate the plain letter of the law.
The solution is not to abandon the law. The solution is to press the Board to get out of its bureaucratic rut and do what the law says it must do — enforce the law and provide effective remedies.
The NLRA says that the Board must seek remedies that will encourage collective bargaining and protect workers’ freedom of association and right to organize themselves and join unions so they can negotiate their terms of employment. But instead of seeking this sort of remedy when a worker is fired for joining a union, the Board only asks the employer to reinstate the worker, pay her back pay, and post a notice about employee rights for a short period.
The NLRA requires the Board to seek remedies that take away the harms caused by firing a worker who tries to organize a union. Firing just one employee can make her co-workers afraid to organize or bargain collectively. Back pay for the worker who was illegally fired is clearly insufficient, and so is asking employers to post notices about NLRA rights, which only tells employees that they have the legal right to organize and bargain. The harms are larger than the small remedies the Board asks for. What the law demands, instead, is a remedy that makes workers feel free to exercise the right to organize and bargain collectively.
Remedies must also encourage employers to obey the law. For some, the law is enough, but others consider back pay money well spent if the firing stifles interest in unions.
In the case of collective bargaining, some employers refuse to bargain outright or go through the motions while creating roadblocks to real agreement. By law the Board must seek the remedy that promotes collective bargaining. The current remedy — an order to obey the law — usually has little impact.
Instead, the Board should seek mediation and interest arbitration as remedies that would promote real collective bargaining. These are remedies that the NLRA’s current language supports and even demands when there has been bad faith bargaining. The law is there, but the will to enforce it is not. It is time to change that and make this law effective.
The NLRA has stated for 75 years that it is “the policy of the United States” to encourage collective bargaining and to protect workers’ “full freedom of association, self-organization, and designation of representatives of their own choosing” — not as ends in themselves, but “for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” And not only for these reasons alone, but because they are necessary to ensure that we have a healthy economy. It is time to make good on that promise.
Ellen Dannin is Professor of Law at Pennsylvania State University’s Dickinson School of Law and the author of Taking Back the Workers’ Law — How to Fight the Assault on Labor Rights (Cornell University Press 2006) and a former National Labor Relations Board attorney.