Everyone taking an honest look at the current system for organizing a union in America must recognize the system is broken. The National Labor Relations Act (NLRA), passed in 1935, sought to introduce “industrial democracy” into an economy racked by the Great Depression. Workers were given a mechanism to create their own economic power. For more than two generations, the NLRA model succeeded. Working class folks were able to negotiate directly with employers and to no one’s surprise, more of the employers’ profits were distributed to the people producing the profits. The American middle class was born as a direct result of the right to form a union.

The country is now facing another economic crisis. A bill that could aid us in getting out of the current economic morass is the Employee Free Choice Act (EFCA). The bill, which President-elect Barack Obama supported during his campaign, has the chance to be the greatest piece of anti-poverty legislation since the Great Society. Despite assertions by critics, EFCA puts power back into the hands of workers to reset the imbalance created in the last 30 years.

The original law envisioned a democratic process to allow workers to choose whether or not they wanted to form a union. As long as both sides respected the intent of the law, the process worked fine. But for the last 30 years an industry has emerged out of the fringes of accepted legal norms to profit handsomely by convincing employers the intention of the law doesn’t matter.

The NLRA as it is written is subject to exploitation by employers who can re-assert their economic might over workers simply by following the law. It is no wonder people who profit on the exploitation of the law are so adamant a new law not pass.

The industry I speak of is called many names (some not fit for publication), but the one that is most descriptive is the “Union Avoidance Industry.” This $2 billion-a-year industry plays a devastating role in the application of a law intended to provide workers with a voice at work.

What was once a process as simple as a local election for city council has been turned into a process of fear and intimidation worthy of any Third World despot. One out of every five workers involved in an organizing drive faces illegal termination.

In 2005 alone, 31,358 workers received back pay judgments from the National Labor Relations Board (NLRB), the federal agency charged with enforcing the NLRA. In 51 percent of organizing drives, the employer illegally threatens to close the workplace. Ninety-two percent of companies facing an organizing drive force employees to attend on work time what are known as “captive audience meetings” where employees are not allowed to speak, ask questions, or debate the merits of the drive with the union present.

The current process involves a vote to “authorize” the union. For anyone who believes this process is democratic or fair, I invite them to join me on an organizing drive and see it themselves.

The best analogy for people who haven’t experienced a union election would be to imagine that – during the last presidential race – John McCain was allowed to go to any state at any time, spend as much money as he wanted, and hold voters in their homes until they agreed to vote for him, while Barack Obama had to stay in Canada, couldn’t talk to voters except when approved by McCain, and couldn’t advertise unless approved by McCain. With the voter list, McCain would have complete control over it and would only share the barest minimum information with Obama – and then, only three weeks prior to the election. Plus, the voting would take place at McCain headquarters and Obama wouldn’t even be allowed in the building except to watch the vote count.

Does this sound like a fair and democratic way to select a president? Of course not, but this is what happens in a union election.

EFCA resets the balance of power by allowing workers to win their union by a process known as “card check.” When a majority of workers sign “authorization cards” the employer is required to sit down and negotiate with them. If there is no agreement on a contract within 90 days, the unresolved issues are sent to binding arbitration. The only people who fear binding arbitration are people with something to hide.

The original intent of the NLRA was to encourage the process of collective bargaining as a way to equitably distribute the economic results of labor. The current law doesn’t work. The new law would be in the best interest of the country and the workers who generate the wealth enjoyed by an elite few. •