Can Unions Win Without the Employee Free Choice Act?

Union members sign cards supporting the Free Choice Act. Photo: Slobadan Dimitrov/LA County AFL-CIO.

The Employee Free Choice Act would eliminate the requirement for a two-step process in union drives—first sign up a majority of workers, then hold an election. But is it the election itself that’s the problem, or the very uneven playing field on which it’s held, where the employer has all the advantages?

At the Smithfield Foods hog butcher in Tar Heel, North Carolina, the United Food and Commercial Workers won election rules that created a fair process and then won the election last December, by a margin of 2,041 to 1,879.

The win came after a 15-year campaign that included firings, beatings, anti-union TV ads, two lost elections, the union’s aggressive corporate campaign, in-plant actions, and, finally, a circuit court decision that Smithfield had broken the law.

Labor Notes talked with Gene Bruskin, who coordinated the campaign.

Labor Notes: Would card check have worked at Smithfield, where there was years of company hostility to the union?

Gene Bruskin: We would definitely have been able to sign a majority of the workers. We did it on more than one occasion. The “We’re Voting Yes” handbill we handed out the day before the vote had close to a majority, and so did a petition we did for a shareholders meeting in 2007.

Also in this issue: EFCA: Fight of a Lifetime?

Remember, we had a strong committee in the plant that was challenging management in all sorts of ways. There was the campaign where people risked getting discipline for writing “Union Time” on their hard hats. Committee members were standing up in break rooms and getting people to sign pledge cards to support the union. Workers signed petitions around health and safety and working conditions and delivered them to human resources. People gave interviews for the union newsletter, with their picture, in which they made statements critical of the company. They handed out thousands of copies of those newsletters in the plant. On several occasions they even stopped the lines in different departments.

But the company insisted on an election. They took the position they would never give card check. They felt they knew how to fight an election campaign and win, like they had done before. Even though this time they had to swallow new rules.

The ‘Secret Ballot’ Sham:
How Is This Democratic?

Votes on union representation often look more like fake elections under a dictatorship than like elections for public office in the United States. One side—the anti-union employer—has the lion’s share of power. It controls workers’ jobs and livelihoods. The campaign is conducted on the employer’s property, during work hours.

What would it be like if a political campaign were conducted under the same conditions as an NLRB election? Imagine a city election where an incumbent mayor could:

• Force voters to attend his or her campaign rallies [captive-audience meetings].

• Permit the opponent to campaign only in city parks and recreation centers [break rooms].

• Threaten to fire the opponent’s supporters.

• Prevent an opponent from campaigning more than a few hours a day [on breaks and between shifts].

• Imply that the city will move to Mexico if the opponent wins.

• If the opponent wins the election anyway, delay that person from taking office [appeals to the courts].



Give $10 a month or more and get our "Fight the Boss, Build the Union" T-shirt.

Adapted from “The Employee Free Choice Act: Questions and Answers,” by the Economic Policy Institute.

LN: In your community pressure campaign, starting in 2006, you had been demanding that Smithfield agree to a fair process—which you thought would be card check. The company kept saying, “Let’s have an election,” and the UFCW had to say, “We don’t think the normal NLRB election process can be fair.”

GB: Admittedly, despite our best efforts, this was sometimes confusing to the media and even to our allies. For three years I had to explain why we didn’t think an NLRB election could be fair. We said it was a trap. But a lot of people just could not get it, including people who were totally on our side. They assumed it must be fair because it was a secret ballot.

LN: But you did end up with an election, though it was run under different rules than the usual NLRB vote. Reportedly, the agreement said that the election would take place quickly; union organizers would have scheduled access to nonwork areas of the plant; neither side would speak ill of the other; and all formal communication, including handbills and the scripts for the company’s captive-audience meetings, would be reviewed by both sides and by a mutually agreed monitor if necessary. Since you didn’t have card check, which of these was most important in allowing a fair election?

GB: Access was key. It was huge. After union reps were demonized for so long and chased away by the police and demonized in all these ads—after all that, the actual presence of the union in the plant sent a completely different message.

It was also tremendous encouragement to the organizing committee. They felt so backed up, no longer alone. On some days, when the union reps came the committee welcomed them, and marched in with them. Union reps marched in with 25-30 workers. It was definitely crucial.

The company had created ads of this supposed UFCW organizer, swarthy, unshaven, knocking on the worker’s door at his house. The worker opens the door, and it’s chained, he’s peeking out at a glaring union rep. In the background his wife is holding a baby. The union guy pushes his way in and sits at the table with the worker and his quivering wife, pushing a card at him.

They also had big posters in the plant before we made the agreement, saying union organizers are like cockroaches: “Once you get them in the house it’s hard to get ’em out.” After all that, to have the union walk in the plant with security was a real contradiction.

LN: What about the “no disparagement” agreement?

GB: In the end it didn’t help that much. Smithfield figured out a way to talk about dues and all that stuff anyway. They were not allowed to threaten to close the plant, but they got all these articles about plant closings and put them all over without comment.

The role of the monitor was that he kept them honest. Nobody got fired, and if they did we would have had an immediate hearing. We saw all their literature first. If we couldn’t agree, the monitor would decide within 24 to 48 hours. Both sides went to the monitor a bunch of times.

One fact that was really important was the limit on the mandatory meetings management could call. There were only two, the length was defined, they had to be scripted, and the union saw the script in advance. Limiting those to a half-hour script really helped, especially in the last week when companies always get really aggressive. The company couldn’t take any questions from the floor.

LN: So these election rules that Smithfield agreed to were very unusual. How did UFCW get Smithfield to agree to rules like that?

GB: Those rules came about in a settlement of Smithfield’s suit against the union, which they filed because of our two-and-a-half-year national public campaign criticizing their treatment of workers in the plant. We had demonstrations at supermarkets, at their annual shareholders meetings, and at numerous events of Paula Deen, the cooking celebrity who was under contract to promote Smithfield’s brand. This type of activity prompted the company to file suit—and we continued it even after the suit was filed.

LN: Can the penalties in EFCA keep employers from breaking the law, or are they still too mild?

GB: Stiff penalties are definitely important, but what I would like to see would be that a fired worker could be put back to work immediately. That is much more important than the triple back pay. Getting one of our best people put back 10 years later didn’t help us for the 10 years he was gone.

But if they fired somebody and that person was put back to work immediately and everybody saw that, it would be really powerful.

Even after we get card check with EFCA, companies can still run effective campaigns against card signing. It’s the same scare. Everybody would rather have the choice of EFCA rules, but unions still have to realize that we can’t avoid organizing and empowering workers—that’s what it’s all about.


bob (not verified) | 03/12/09

if the taft-hartly act was abolished,would that not give the unions more power then the free choice act?

Anonymous (not verified) | 02/22/09

"GB: Admittedly, despite our best efforts, this was sometimes confusing to the media and even to our allies. For three years I had to explain why we didn’t think an NLRB election could be fair. We said it was a trap. But a lot of people just could not get it, including people who were totally on our side. They assumed it must be fair because it was a secret ballot."

Unfortunately the point still has not been made IMHO. Anything that the employer did when they knew an election was coming up could just as easily be done when the employer perceives some card checking in the offing. I am one of those who don't see the reason for EFCA to put all the union eggs in the card check basket. Why not put some of the great things described here that actuallyallowed the election to proceed in a more reasonable manner in the EFCA bill, for both the card check and election pathways? And why not do something to ensure the confidentiality of card signers? I honestly don't see how this would work. The minute management sees someone signing a card they can fire that person. Is there anything in EFCA that's going to keep that from happening?