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Pro-union groups have been trumpeting the notion that 60 million Americans would join a union if they could, nearly quadrupling the number of current union workers. Many adhesives industry workers, and others, are likely to feel new pressure to join a union whether or not the Employee Free Choice Act, which passed the full House of Representatives on March 1, becomes law this year.
Should the EFCA pass, it would fundamentally amend the National Labor Relations Act, which has guided the way union organizing campaigns and elections have been run for more than 70 years. Most notably, the EFCA would change the process by which unions organize and the way that first contracts are negotiated, starting by doing away with the secret-ballot elections that ensure employee confidentiality in union organizing.
Doing Away with Secret BallotsUnder the current system, employees can schedule a vote for union representation if they show the National Labor Relations Board - through signed authorization cards - that 30% of potential members want union representation. Then, the NLRB conducts a secret-ballot election. If more than 50% of eligible employees vote for union representation, the union gets in. But unions only win about half the time in elections.
The current system allows workers to express their opinions privately and confidentially, and gives employers time to present workers with the facts about unions. Under the proposed bill, the secret ballot would be replaced by a “card check” system. These cards are often signed in the presence of a union organizer or a pro-union coworker, which may be the result of harassment or intimidation. If 50% of the employees sign the cards, the union is in.
While Sen. Edward Kennedy (D-MA) has said the bill will add “real teeth in the law by strengthening the penalties for discrimination against workers who favor a union,” it includes some worrisome aspects, even for employees. Workers may not be able to obtain the information they need to make an informed choice about whether to unionize, and to express that choice in private, without fear of coercion, threats or retribution, as evidenced by the fact that unions win only a little more than 50% of secret ballot elections.
In fact, many Democrats who support the bill - including House sponsor George Miller from California - have previously expressed this exact concern. A 2001 letter, sent by Rep. Miller and 15 other members of Congress to Mexican government officials, said, “We feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose.”
The U.S. Chamber of Commerce has spoken out repeatedly against the card check system. In a Jan. 4 letter to members of Congress, Bruce Josten, executive vice president at the Chamber, pointed to a 7th Circuit Court of Appeals opinion that found workers may sign authorization cards in union elections to avoid offending the person who has asked them to sign it or to get that “person off their back,” rather than out of a genuine interest in joining the union.
“Unions are now emphasizing the card-check process in their organizing drives, not because they do not win secret ballot elections - they win over 50% - but because it eliminates any chance of losing,” Josten wrote. “In addition, as an open-ended process, they can keep their campaign going as long as necessary, rather than resolve the issue on a specific date with an election.”
Arbitrating a First ContractWhile the possibility of doing away with secret-ballot elections and replacing them with a card-check system is getting most of the headlines, the EFCA would also alter the way first contracts are negotiated. The result could be even more troublesome for employers and workers alike.
Negotiating a first contract between management and a new union is a delicate, time-consuming process. In fact, about half of all employers and unions have failed to reach a first contract within two years of the union’s formation. Under the current law, as long as both parties are acting in good faith, it can take as long as necessary to hammer out an agreement.
But that process of patient, good-faith negotiations would no longer be the case under the EFCA. Employers and unions would not have the luxury of time to work out a new contract in a pressure-free environment. Under the bill, if a union is certified and it cannot reach an agreement with the employer after only 90 days, either party can call in the Federal Mediation and Conciliation Service, the government agency that assists in the mediation of labor disputes when contract negotiations become stalled. If, with the assistance of a mediator, an agreement still hasn’t been reached in 30 days, the matter can be sent into compulsory arbitration. The arbitration panel or single arbitrator will have the right to impose a collective bargaining agreement that will be binding on the employer and the union for two years.
Knowing that binding arbitration is required, unions may start out contract negotiations with a broader agenda and a less flexible attitude. We expect most first contract negotiations to end up with arbitrators, who will be in the unique position to choose language from either party or create provisions of their own. Moreover, arbitrators’ decisions on first contract terms may not even be subject to legal review, leaving employers and workers with little recourse against a decision that may ultimately have terrible consequences.
Other ProvisionsThe Employee Free Choice Act would also increase civil penalties up to $20,000 per violation against employers who have been found to violate employees’ rights during an organizing campaign. The bill would require the National Labor Relations Board to award liquidated damages in the amount of two times any back pay found due and owing, and would also prioritize NLRB investigations of unfair labor practice charges that an employer allegedly commits during an organizing campaign, with mandatory federal injunctions if a violation is found.
The BattleThe battle over EFCA in the Senate, where Democrats have only a slight majority, could be more intense than the House; however, Sen. Kennedy, who authored a version of the bill that was introduced in the last Congress, has vowed to “play offense” for it. A Presidential veto has already been promised, but passage of the law, even if only by the House, is symbolic: it sets up labor’s litmus test for the 2008 elections.
Many Democrats are dependent on unions to fund their election bids, and unions are certain to elicit promises in exchange for their money. Should Democrats retain Congress and gain the presidency, the unions will have already bought enough votes to ensure passage. (This is likely why at least 15 members of congress have flipped on this issue since their letter to Mexican officials in 2001.) For the unions, who have watched union membership drop from about 35% of the work force to less than 8% of the private workforce, this is their chance to increase membership as well as dues.
The U.S. Chamber of Commerce is urging Congress to see past the emotional aspects of the proposed legislation. “Reliance on stale 1930s rhetoric that falsely castigates employers will only perpetuate organized labor’s current membership difficulties,” wrote Josten in his letter to members of the House Education and Labor Committee. “The answer to organized labor’s failure to get more members lies in developing an agenda and message that is relevant and attractive to the modern workforce, not in subverting proven election procedures that protect an employee’s right to vote for a union in secret, free from coercion.”
The Chamber’s e-Advocates Action Center at www.voteforbusiness.com/capconn/alertdetail.aspx?AlertID=246 offers opportunities to get involved and help defeat EFCA.