The decline of union power in the United States is the driving force behind proposed legislation awaiting a Senate vote that would make it easier for workers to organize by doing away with secret-ballot elections. In 1983, when the Bureau of Labor Statistics began tracking union membership data, 20.1% of the workforce was unionized. Fast forward to 2008 and only 12.4% of employees nationwide belong to unions, according to the Bureau.
Supporters of the Employee Free Choice Act (EFCA), or "card check" bill, say the current system suppresses employees' ability to form unions by ultimately putting the decision to unionize into the hands of employers.
"Under the current law, when a majority sign cards authorizing a union, then they have a union if their employer consents to it," said bill sponsor Rep. George Miller, D-Calif., when first introducing the legislation in 2007. "But instead of consenting, employers often reject the employees' choice and force them through an NLRB (National Labor Relations Board) election process that is dramatically tilted in the employer's favor."
The pro-labor think tank Economic Policy Institute (EPI) characterizes the NLRB election campaigns as resembling "sham elections in totalitarian countries." EPI claims employers are quick to fire workers who participate in organizing campaigns, citing a study published in 2000 by Cornell University professor Kate Bronfenbrenner who says 32% of employers break the law by firing pro-union workers and 50% skirt the law by threatening to close.
The EFCA would penalize companies that violate the law during organizing campaigns and negotiations for the first contract with a fine of up to $20,000 per violation, triple back pay for employees unjustly discharged or a requirement that the NLRB seek federal court injunctions if it's suspected that an employer violated the law during organizing efforts, according to EPI.
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"EFCA is a dramatic departure from long-established labor law," National Association of Manufacturers CEO John Engler said following the introduction of the bill in Congress on March 10. "It deprives employees of the privacy of the secret ballot, which has always been an integral part of the democratic process. It would also change the traditional role of federal arbitrators from interpreting contracts to dictating the terms and conditions of contracts."
NAM says the EFCA would add 1.5 million more union members, while costing the economy 600,000 jobs in 2010.
Miller refutes this claim, saying it was a "bogus study bankrolled by the very lobbyists pumping millions into efforts to defeat this bill." He notes that the nation's economy expanded greatly in the 1950s and 1960s when union membership was at its highest rate.
Another point of contention in the bill is the addition of an arbitrator if negotiations reach an impasse. After a union is formed, the company would have 120 days to agree on a contract or negotiations will move to arbitration, says David Barron, a partner in the labor practice of Epstein Becker Green Wickliff & Hall.
"What that would effectively mean is the union is going to come in with a huge amount of wages and benefits knowing that if the company doesn't agree, then an arbitrator might be tempted to split the baby and do something that's in the middle," Barron says.
The bill also could open union organization efforts up to more fraud and abuse, according to Barron.
"The secret-ballot election administered by the federal government is about as fair of a system as anybody has come up with yet for people to express their wish whether to have the union or not in an unbiased environment because there's a federal employee there, and no one can go into that room and twist people's arms," he says.
But Miller says unions are limited in their power to coerce employees into organizing if they're not interested.
"Unlike employers, a union organizer can't fire you, cut your pay or deny you a promotion," said Miller, on the Web site for the Education & Labor Committee, of which he serves as chairman. "But if you're an employee actively trying to organize your co-workers, you have a one in five chance of getting fired by your employer for simply exercising your democratic rights. Even a pro-business group could only find 42 cases of union deception and/or coercion in obtaining card signatures over the last 70 years. Contrast that with roughly 30,000 workers who received back pay from employers that had fired or illegally intimidated them for each year of the Bush administration. It's clear where the problem lies."
Of course, pro-business advocates say the problem lies with unions that take an us vs. them attitude rather than working with management to foster an environment that works for both parties. If the bill passes, that will only drive labor and management further apart, Barron says.
"Imagine the difference between having a majority of your employees vote in a secret-ballot election that they want a union," he says. "Although the employer might not agree with that, they'll at least understand that and accept it. I would think you'd have a different reaction to a union presenting cards that the employer believes were fraudulently or coercively obtained. I think the employer is going to see that union differently in its credibility and willingness to deal with that union. So frankly I think it's going to ratchet up that antagonism because the employer is going to feel like it got a raw deal and this union is not legitimate."
