The President’s Message
The following is President Lasky’s address in defense of the Employee Free Choice Act (EFCA) at Palm Beach Debate
The Wagner Bill – which gave rise to the National Labor Relations Act (1935) is the law that basically legitimized the right for workers to organize and join Unions…to maintain closed union shops and established Union hiring halls. However, unions at that time were not regulated as they are today. Unfortunately, the lack of regulations opened the door for many abuses perpetrated by Union officials, representatives and organizers. It initiated an opportunity for those with ill conceived intent to engage in criminal activities such as extortion, bribery, embezzlement and many other illegal practices associated with the underworld.
As a result of these abusive practices, and after many complaints from the victims of management and labor alike, a law was enacted to abate, control, restrict and render it unlawful to engage in these unacceptable practices.
The Taft-Hartely Law was enacted in 1947. Among the many features in this law was that it basically outlawed the closed Union shops and hiring halls which eliminated the corrupt activities associated with it. The Taft-Hartely also made bribery, extortion and embezzlement a felony.
Subsequently, and after many other ensuing improper behavior by Unions, once again a law was passed to prevent these newly emerged illegal abuses. The Labor Management Reporting & Disclosure Act aka The Landrum Griffin Act (1959) democratized unions for the election of officers. It also imposes the annual filing of LM2 Forms for all paid labor officials and representatives to disclose payroll, individual expenses, union expenditures, union investments and all other financial activities of the Union. The Union is also required to have a complete audit annually conducted by a recognized credible accounting firm that has no direct or indirect association with the Union. The results of the audit are dispatched to the U.S. Department of Labor which is reviewed by them and kept on file. Union officials face heavy penalties in fines if these forms are not delivered on a timely basis, and heavy jail terms for violations as specified in the act re: bribery, embezzlement, extortion and kickbacks.
Once again additional laws were introduced when the Employees Retirement Income and Security Act (1974) aka ERISA was enacted. It was made law to safeguard employees’ welfare and pension plans. Strangely enough, the absconding of workers’ pensions by the giant Studebaker Company triggered this legislation for their abusive practice, not the unions.
The Act mandates the Dept of Labor to oversee, govern and regulate the activities of plan administrators and trustees to safeguard and protect employee pension and welfare plans for covered workers who look forward to their retirement and the maintenance of their health benefits. It prohibits trustees from engaging in risky investments. The law also requires the annual filing of the 5500 forms, to disclose all of the financial activities of the Pension and Welfare Plans that include payroll, personal expenses, and also for the monitoring of investments. This too requires an annual mandated audit that is conducted by another recognized, credible accounting firm that has no direct or indirect association with the Union. It also dictates the enforcement for many of the provisions for violations therein which imposes fines, jail terms and other penalties.
Since 1974 the ERISA Act has been updated and amended to ensure additional protection from abuse.
Now that this legislation was justifiably enacted to regulate unions for their transgressions…. (albeit over-reaching in some instances)…. Laws that are extremely effective to deter the illegal and abominable behavior perpetrated by Union officials, then why shouldn’t there be legislation enacted to curb or eliminate the flagrant and egregious abuses perpetrated by employers who engage in illegal and improper behavior that prevent workers from forming unions or to bargain collectively for better working conditions?
There is an urgent need for government intervention to enact legislation that will provide a level playing field with Employers, for unions and those workers who want to be organized. Legislation for the most part only to strengthen existing laws.
The magnitude of the improper conduct by companies, in my opinion, companies that will do anything to frustrate and impede the efforts of willing working men and women from joining a union, far eclipses those infractions, if any, committed by Unions when it relates to organizing and bargaining.
The Employees Free Choice Act aka known as “EFCA” is and should be the answer to stop the abusive and illegal behavior of companies.
The current process for forming unions is badly broken and so skewed in favor of those who oppose unions, that workers must literally risk their jobs in order to form a union. Although it is illegal, twenty-five percent of employers facing an organizing drive have been found guilty of firing at least one worker who supports a union ….. these statistics are supported as reported by the proven Unfair Labor Charges levied against company’s at the NLRB. As in all statistics there are many more that go unreported. In fact, employees who are active union supporters have a one-in-five chance of being fired for legal union activities. These proven statistics likewise do not include the many violations that go unreported.
Sadly, many employers resort to spying, threats, intimidation, harassment and many other illegal activities in their campaigns to oppose workers organizing efforts. The present penalties for illegal activity, including the firing of workers for engaging in lawful protected activity, is so weak that it does very little to deter companies from continuing their lawless behavior. Even when the employers don’t break the law, the process itself still stacks the deck against unions and union supporters.
The Employer has all the power, they control the information workers receive by forcing workers to attend anti-union meetings during work hours… they force workers to meet with supervisors who deliver anti-union messages and can even imply that their business will close if the union wins. These illegal activities are likewise documented and supported by proven charges filed at the NLRB. Union supporter’s access to employees on the other hand is heavily restricted.
At present, the lackadaisical NLRB…. Seemingly intentional often takes many months or even years to resolve those complaints of employer intimidation, firings and threats of plant closings impeding employees rights and efforts wanting to organize a union….At which time when proven and after many months of investigation, the NLRB merely orders a new election. Thus starting the dismal cycle all over again.
Unfortunately, current federal labor law isn’t protecting workers’ freedom to form unions and bargain. Even those workers who are successful to form a union at their workplace…. Forty-four percent of the time they cannot get a first contract. A study by John Paul Ferguson and Thomas Kochan at the MIT Sloan School of Management found that only 56% of unions that win elections are successful in negotiating their first contract. The fact is that newly formed Unions lose their presumption of majority status after one year without reaching a contract. The duration of an NLRB certification for a victorious elected union is just for one year. This regulation gives the employers an incentive to delay the bargaining processes for a year and force the demoralized workers to vote again, most often resulting in the unions decertification. This strategy is extremely successful with the help of union busting attorneys and their anti-union consulting firms. The enactment of the Employees Free Choice Act in its present form will eliminate the incentive for employers to bargain in bad faith and it will dramatically reduce the delay, frustration, and animosity associated with the current management dominated system.
Currently, a culture of near-impunity has taken shape in much of U.S. Labor law and practice. Even a cursory maneuver by employers on resisting workers self-organization can drag out legal proceedings for years fearing little more than an order from the NLRB to post a written notice in the workplace promising not to repeat their unlawful conduct. Many employers have come to view remedies like back pay for workers illegally fired because of union activities as routine costs of doing business,…and in their analysis it is well worth it to rid themselves of the organizing leaders and derail the frightened remaining workers’ organizing efforts.
The Employee Free Choice Act if enacted would require the NLRB to give such cases “Top Priority” and to litigate those unlawful complaints with dispatch. The bill will also require that once a union is certified as the bargaining agent for the workers, an employer must negotiate an initial contract within 120 days and if no agreement is consummated the dispute is referred to binding arbitration. This is basically the same procedure as it applies to Federal, state and public employees unions. However, all time limits can be extended by mutual agreement.
In most cases, people unknowingly refer to the current NLRB election system as a “fair” secret ballot election, but in practice it’s not like any democratic election held anywhere in our society. It’s really a management controlled election process. Companies have all the power and control during the election process because it is not subject to any enforceable deadlines. It isn’t unusual for many months to pass between a Union’s initial petition for an election and an actual vote, leaving the workers extremely vulnerable to continuous intimidation and unfettered unfair labor practices. It is also not unusual that even after a victorious election by the union, the employer skillfully challenges the election with concocted allegations designed to hold up the union certification for years.
The current Union Election system is neither fair nor free. The Corporate mangement with the advice from their anti-union busting attorneys are in complete control by committing unfair and illegal labor practices…..unabated while being given a free hand by the NLRB in delaying a closed ballot election. Further erosion of organized labors and workers rights have been by the elimination of “bargaining orders” even when the administrative law judge recommends it. The delays by the previous administrations’ conservative NLRB in issuing timely decisions re: unfair labor charges have denied workers of their fundamental rights that are protected by National labor Relations Act of 1935 – Reminding us of the old adage, Justice delayed is Justice Denied. The employers and their advisors are aware that by playing out the string and relying on the NLRBs’ lethargy they can abuse the present process with very little or no consequences.
Card Check Provision
The U.S. Chamber of Commerce portrays the “Card Check” provision in the Employees Free Choice Act as an affront to human rights depriving the worker of their American right to choose with a closed ballot while knowing full well that the present closed ballot system is not what it was originally designed to be,…that it is rigged against the worker as a result of the employer’s unchecked and abusive interference with relative impunity during a unionizing campaign & even thereafter during the negotiations for an initial contract.
No, the current closed ballot election process is not either fair or free where the current system allows anti-union advocates and their advisors…..who have improved their skills in scaring off workers wanting to be unionized, and by being given more than enough time to commit numerous illegal unfair practices under the nose of a cravenly submissive NLRB. They are fully aware that the present system allows unfair labor practices to go on unabated and for the union certification process to drag on indefinitely. This, I submit to you is the real affront to human rights…. and the Employee Free Choice Act can restore those rights that the workers are legally entitled to.
Let me give you, in my opinion, another compelling reason as to why the passage of the EFCA legislation is so essential.
There has been a newly emerged lucrative industry that has developed in this country within the recent past.
This industry or movement (if you will) are run by people who are willing to invest multi-millions of dollars for the sole purpose to undermine and deprive the rights of workers to earn a decent living and to protect their interests in the workplace.
The “American Rights at Work” and the “Center for Union Facts” are anti-union National Labor Policy Organization in Washington, D.C. The slanted mudslinging rhetoric by these organizations and other anti-union groups are nothing more than an attempt to hide what is the real crisis in the American workplace.
Their vitriolic venom is designed to detract from the true facts that…Too many workers in the United States of America still cannot adequately provide the basic necessities for their families…..
….Too many workers cannot protect themselves from work place hazards….
That too many workers have no job security to protect them from arbitrary firings, intimidation and harassment.
….Too many workers stills cannot take care of themselves and their families when they get sick because they do not have or cannot afford decent health coverage…..and I am not too sure that the final outcome of the watered down pending healthcare bill will be adequate enough to fulfill the promise of ample health coverage for working families…..
These ultra conservative groups’ strategies are contrived to derogate from the true facts by spreading their spurious anti-union venom and are a serious threat to our democratic way of life.
Their motives behind assailing the rights of workers are both financial and ideological. Union busting is big business and it pays well. The “Center for Union Facts” and a certain DC Mercenary lobbyist…whose name I shall not mention…. Is the mastermind behind the many misleading anti-union newspaper ads and radio commercials, and is earning a lucrative living from it.
They are not the only ones profiting from conspiring to bring about the demise of Labor Unions. The proliferation of anti-union busting consulting firms, recommended by anti-union busting law firms has resulted in 82% of employers hiring them to help fight workers organizing efforts ---- Indeed, they are so confident of a successful outcome that their most persuasive points to be retained is a promise that the employer is devoid of paying their fee if they are not successful… “An offer they cannot refuse”. They boast of a 95% success rate…and I can tell you that this figure is pretty accurate.
This trend has many causes, the main one being the dilution of workers bargaining power which is associated with the decline of unionization that has fallen in the private sector from 33% of American workers in 1955 to 7.2% today. The degeneration of labor union membership, to a large degree can be attributed to these well paid spin doctors of these ultra-conservative groups.
The overall unionization including the public sector toady is 12.3%.
The assault of Unions goes deeper than the dollar. It is bolstered by an ideological objective by these groups to eradicate organize labor entirely. “Indeed one of the first institutive actions taken by Adolf Hitler after rising to power in Nazi, Germany was…the enactment of a law abolishing all labor unions”. The result of such a loss would leave the worker without representation, political clout…..or even the ability to improve his lot.
If the tactics of these anti-union forces were to remain unchecked it would endanger the existing rights of what the working class value in America and it must be dealt with by the passage of pro-labor legislation in Washington…legislation mainly to strengthen existing laws.
However, these anti-Union lawyers and consulting firms always knew, but somehow they seemed to have forgotten…..and unfortunately will keep them in business and that is…
Workers still want to join unions
a) because Unions equal the playing field with the powerful National Association of Manufacturers (NAM) whose main political agenda is to strengthen big business by lobbying for anti-union legislation in Washington.
b) Workers still want to join unions because Unions are a powerful deterrent to poverty and unfettered uncontrolled companies coercive methods.
Workers still want to join unions
a) because they know that nowhere else can they find the help and support that offer to them job security, wage increases health benefits, grievance machinery, retirement plans and many other positive condition of employment, provided for them within a freely negotiated and a binding contract.
If the ideology of these conservative extremists were to prevail, the effect would be disastrous not only for the working class but for the country as well,…..returning America to the neglect and unfairness of the 19th century labor conditions.
This should not be allowed to happen for if it does, we will regress to an era long gone…..back say even to the early 1930’s…. when there was no middle class…where all workers were considered as “At Will Employees”– eradicating all of the beneficial advancements achieved through organized labor that fostered the creation of the American middle class…no job protection poverty level wages ….reflecting, Marie Antoinette’s reply to the cry of hungry… “Let them Eat Cake”.
I am a strong advocate of a union which is alert to both the problems of management and labor that can best serve the workers while not unrealistically impeding the economic process….however, a union must have the proper tools….namely EFCA to fairly pursue labors’ just needs.
In conclusion, the Employees Free Choice Act (EFCA) will remedy labors’ calamity in the following specific ways:
1. It will remove the Current Illegal Barriers that Prevent Workers from Forming Unions to Bargain Collectively.
It requires that when a majority of employees has signed authorizations designating the union as its bargaining representative, the union will be certified by the National labor Relations Board (NLRB). It requires the Board to develop specific, detailed language and procedures for establishing the validity of signed authorization. It changes the current corporate-dominated representation process that encourages companies to coerce and intimidate workers who seek to form a union and pressure them to influence their choice. Anti-union forces falsely claim that workers are intimidated by union organizers and their supporters into signing authorization pledge cards, not true.
In fact, statistics shows that the NLRB has consistently dismissed these charges as baseless and unproven after many months of investigation.
2. EFCA would guarantee Workers a Contract when they are successful to form a new Union.
It provides that when an employer and newly formed union are unable to bargain a first contract within 90 days, either party can request mediation by the Federal Mediation and Conciliation Service (FMCS). If no agreement has been reached after 30 days of mediation, the dispute is referred to binding arbitration. All time limits can be extended by mutual agreement. This change eliminates current incentives for employers to delay and stall negotiations…a tactic used to obtain 2 objectives…to frustrate and demoralize the workers….and mainly to run the string out of time for one (1) year with the intention of ending the unions’ certification, thus call for a new election.
EFCA Strengthens Penalties against Companies which Break the Law During Organizing Campaigns and First Contract Negotiations.
Company violations have been epidemic in large part because remedies for corporate misconduct, such as illegal firings of unions supporters, are so weak that they are ineffective and are unable to deter continued infringement of workers’ legal rights. New, tougher remedies will provide more protection for the worker’s legal right to form or join a union.
EFCA will provide for Civil Penalties: Of up to $20,000 per violation against companies found to have willfully or repeatedly violated employees’ legal rights during an organizing campaign.
EFCAincreases to three times back pay the amount a company is required to pay when an employee is illegally discharged or, discriminated against during an organizing campaign.
EFCA will provide for Mandatory Applications for Injunctive Remedies: Which shall require the NLRB to seek a federal court injunction when there is reasonable cause to believe a company has discharged or discriminated against employees,….threatened to do so,/or engaged in conduct that significantly interferes with employee rights during an organizing campaign.
These EFCA provisions are vital to counteract proven illegal activities perpetrated by Employers and is a means of deterring or preventing future violations of workers’ rights…rights that they are legally entitled to.
Please keep in mind that it is the law and it will affect only those who wantingly break it.
Thank you.
