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America’s Real Patriot Act: The Employee Free Choice Act

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When America’s founders crafted the Constitution, they knew more was needed to ensure the survival of democracy. So they created the Bill of Rights. They made sure that at the top of the list, the First Amendment included such rights as the freedom of assembly. That is, the freedom of all of us to gather together in groups of our choosing. Like, say, unions.

Some opponents of workers’ freedom to form unions seem to have forgotten that forming groups outside government—and corporate—purview is critical to a free nation. In Big Brother-speak, these corporate hacks are attacking the proposed Employee Free Choice Act—which would enable more workers to have the freedom to form unions—as unconstitutional.

Here’s what’s really outrageous:

  • Managers following employees to the bathroom and around the workplace to harass them for seeking to form a union.
  • Workers so intimidated by employers, they become scared of voting in a ballot for a union so they vote against the union or don’t vote at all, fearing that if they do, they’ll lose their job.
  • Employers spending millions of dollars to fight workers’ efforts to unionize, so they won’t have to provide workers with decent health care and retirement security.
  • The mindset exhibited by some southern Republican senators to import the low-wages, no benefits, no genuine union representation model of China and Bangladesh to the United States, enserfing U.S. workers in a perpetual cycle of poverty.

In fact, those who assert workers have no freedom of assembly demonstrate the same un-Americanism as those who sought to make middle-class autoworkers the enemy by championing the expansion of lower-paid, minimal benefit jobs generated by foreign manufacturers.

Opponents of the Employee Free Choice Act now are trying to wrap themselves in the notion of "freedom of speech"—that is, employers’ freedom of speech, not workers’. It’s the same tired argument that Big Business used when lobbying for the Taft-Hartley Act. At that time, corporate interests asserted the National Labor Relations Act didn’t give employers enough "free speech." So Taft-Hartley, which passed in 1947, gave employers so much freedom to counter unionization efforts that today, according to research by Cornell University professor Kate Bronfenbrenner:

  • Ninety-two percent of private-sector employers, when faced with employees who want to join together in a union, force employees to attend closed-door meetings to hear anti-union propaganda; 80 percent require supervisors to attend training sessions on attacking unions; and 78 percent require that supervisors deliver anti-union messages to workers they oversee.
  • Seventy-five percent hire outside consultants to run anti-union campaigns, often based on mass psychology and distorting the law.
  • Half of employers threaten to shut down partially or totally if employees join together in a union.
  • In 25 percent of organizing campaigns, private-sector employers illegally fire workers because they want to form a union.

So when you hear opponents of the Employee Free Choice Act sniveling about (employer) free speech, beware.

Another argument supposedly showing the Employee Free Choice Act is unconstitutional (this one is so obscure it won’t be getting much steam) is it would violate the Fifth Amendment “takings” clause. The proposed Employee Free Choice Act would require binding arbitration if a contract can’t be reached within a certain time. As Publius points out on Obsidian Wings:

The point of this requirement is to prevent employers from bargaining in bad faith to run out the clock (employers are free to de-recognize the union after a year.)

Bronfenbrenner’s research finds that even after workers successfully form a union, employers do not negotiate a contract in one-third of the instances.

In fact, as Publius further points out, the "takings" argument was rejected in 1937 in NLRB v. Jones & Laughlin Steel Corp.

Corporations are running scared. They fear that under the Obama administration, America’s workers might actually improve their chances to form unions on the job and thereby attain or maintain a middle-class standard of living. So Big Business and its minions are throwing out every possible attack against the Employee Free Choice Act, trying to see what will stick.

And showing just how un-American they are in the process.

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Tula Connell

Tula Connell