US labor law currently permits a wide range of employer conduct that interferes with worker organizing. Enforcement delays are endemic, regularly denying aggrieved workers their right to an “effective remedy.” Sanctions for illegal conduct are too feeble to adequately discourage employer law breaking to deter violations.

Unfair union election rules allow employers to engage in one-sided, aggressive anti-union
campaigning while denying union advocates a similar chance to respond and banning union organizers from the workplace or even from distributing information on company property. If confronted with clear evidence of employee support for a union, employers can force a formal election and manipulate the often lengthy pre-election period to pound their anti-union drumbeat and, in many cases, violate US labor laws, confident that any penalties will be minimal and long delayed.

Workers who overcome these obstacles and successfully form a union may still be unable to conclude a collective agreement, in large part because weak US labor law provisions fail to meaningfully punish illegal employer bad-faith negotiating or to adequately define good-faith bargaining requirements.

Penalties for breaching US labor law are so minor that employers often treat them as a cost of doing business—a small price to pay for defeating worker organizing efforts. Under US labor law, an employer faces no punitive penalties and few, if any, economic consequences for violating workers’ right to freedom of association. Instead, in most cases, a guilty employer must simply complete a two step “remediation process”: restore the status quo ante by recreating working conditions prior to the violations; and post a notice conspicuously in the workplace, such as on a lunchroom or kitchen bulletin board, promising to stop and not repeat the unlawful conduct.

The law’s meager penalties are further weakened by endemic enforcement delays. According to the most recent annual report of the National Labor Relations Board (NLRB), the US agency charged with enforcing labor law, workers wait an average of roughly nine months between the time they file unfair labor practice charges against their employer and an administrative law judge issues a decision in their case; they wait an average of over three years between the filing and a decision on any appeal to the full Board in Washington, DC.

Employers often initiate and take full advantage of such delays, in many cases heeding the explicit advice of anti-union consultants. Employers file appeals to the courts, regardless of their merits, rather than complying with administrative orders to reinstate illegally fired workers or bargain collectively. Years more are thereby added to the protracted enforcement process.

Furthermore, the NLRB has shown itself largely unwilling to use the means at its disposal to most effectively protect workers’ rights. It has a discretionary tool to help mitigate the devastating impact of paltry labor law sanctions and long enforcement delays in the most egregious cases, but that tool rests largely idle. Under US law, the NLRB may petition a federal district court for a “10(j) injunction” to stop alleged illegal employer activity in especially serious cases. The Board rarely files such petitions, however, filing only 19 in fiscal year 2007. As a result, flagrantly anti-union employer activity is allowed to accomplish its goal of derailing worker organizing efforts while legal cases are pending: organizing drives whose leaders have been fired dissolve for lack of direction; workers scared by illegal threats of employer retaliation abandon union formation efforts.

The Employee Free Choice Act would strengthen the penalties for unlawful anti-union conduct during organizing drives and first-contract negotiations. The Act would increase the amount due to workers fired, demoted, suspended, or otherwise discriminated against for their organizing activity, increasing the current “make-whole” remedy by requiring payment of “2 times that amount as liquidated damages.” The Act would also institute civil fines, payable to the US government, of up to $20,000 per violation for willful or repeated illegal conduct. In addition, the Act would eliminate the discrepancy between the treatment of workers’ and employers’ alleged serious labor law violations by requiring the NLRB to seek a 10(j) injunction if it reasonably believes that an employer engaged in unlawful anti-union activity that “significantly interferes with, restrains, or coerces employees” in the exercise of their right to organize and bargain collectively as set forth in US law.

US rules governing workers’ selection of union representation were not always so slanted against workers’ right to freely choose on an informed basis whether or not to organize. For at least ten years, from roughly the mid-1930s to mid-1940s, US employers were required to recognize a union that demonstrated majority support through card check rather than delaying recognition until an NLRB election. Employers were also prohibited from making anti-union speeches, holding anti-union captive audience meetings, and distributing anti-union literature.

In 1947, however, the US Congress passed the Taft-Hartley Act. The new law amended US labor law by permitting employers to file election petitions in response to unions’ demands for recognition and by establishing an “employer free speech” clause, allowing employers to engage in aggressive anti-union campaigning. Yet even after the Taft-Hartley Act, the NLRB and US courts for several years upheld union representatives’ corresponding right to respond, recognizing workers’ right “to hear both sides of the story under circumstances which reasonably approximate equality.”

The workers’ rights protections of the 1930s through early 1950s, however, were gradually
abandoned in favor of the existing union election rules that run afoul of international standards. The failure of US labor law to allow union representatives to communicate with workers on company property—both through worker meetings that could respond to employer anti-union campaigning and literature distribution that could counter employer anti-union materials—has been explicitly criticized by the ILO Committee on Freedom of Association.

The Taft-Hartley provision permitting a US employer to file an election petition in response to a union’s demand for card-check recognition is also used in practice to defeat the exercise of the right to form and join trade unions. As discussed above, many US employers file union election petitions with just such an intention: to take advantage of unbalanced US union election rules, weak sanctions for illegal conduct, and lengthy enforcement procedures to create an opportunity “to delay or prevent” union formation.

The Employee Free Choice Act would not ban employers from mounting aggressive anti-union campaigns or require them to allow union advocates and organizers an equal chance to respond, but it would significantly mitigate the negative impact of existing union election rules on workers’ right to freedom of association. Under the Act, workers could opt to select union representation through card check or an NLRB election, and employers would be compelled to respect that choice. Upon NLRB confirmation that a majority of workers had signed valid union authorizations or “cards,” employers would be required to recognize and bargain collectively with the union, rather than forcing an NLRB vote. As a result, employers would no longer be guaranteed a pre-election period during which to exploit weak US labor laws and practice “to delay or prevent” union formation or otherwise undermine workers’ right to choose freely whether to organize.

Even if US workers successfully organize, however, their fundamental right to freedom of association is still not fully secure because of shortcomings in current legal provisions governing collective bargaining.

US labor law declares that it is the policy of the United States to “encourage the practice and procedure of collective bargaining.” To these ends, the law establishes workers’ right to “bargain collectively through representatives of their own choosing” and bans employers from refusing to negotiate with such representatives. Specifically, employers are required to “meet at reasonable times” and negotiate in “good faith,” defined as “the obligation ... to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement, and a sincere effort ... to reach a common ground. ”Unfortunately, the promise of these provisions is often undercut in practice, largely due to weak remedies for violations and unclear standards for proving bad-faith bargaining in court.

Under existing US law, if an employer is proven to have engaged in the common practice of illegal “surface bargaining”—negotiating with no desire to reach an agreement—the remedy required is more bargaining: the employer must post a notice promising to refrain from further bad-faith bargaining and is ordered back to the negotiation table where the cycle of bad-faith bargaining can repeat itself, lasting in some cases for years. Because there are no significant negative repercussions for illegal conduct in this scenario, there is little incentive for intransigent employers to comply with the law. As a result, many workers who face prolonged “surface bargaining” end up abandoning the negotiating process and their union, driven by their employers to surrender their right to freedom of association.

US employers also can evade even the minimal consequences of surface bargaining by exploiting a pernicious legal loophole. US labor law fails to establish concrete criteria for demonstrating the “present intention” and “sincere effort” to reach a collective agreement required during good-faith negotiations. Without such criteria, proving violations is extraordinarily difficult. Employers regularly take full advantage. Advised by expert counsel, employers often go through the motions of good-faith bargaining to create the appearance of lawful conduct while, in reality, they have no intention of ever concluding a contract.

The Employee Free Choice Act would not attempt to clarify US labor law’s amorphous definition of good-faith bargaining, but it would at least help prevent it from continuing to undermine workers’ rights. The Act would allow workers negotiating their first collective contract to seek mediation after 90 days if the negotiations are not progressing satisfactorily. If mediation failed after 30 days, the dispute would be referred to arbitration, leading to a binding contract. (The parties could mutually agree to extend the initial bargaining and subsequent mediation periods.)