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Weighing the Employee Free Choice Act

February 09, 2009|MICHAEL HILTZIK

For big business, democracy in the workplace is generally compared to a horrific disease, like herpes or socialism.

Therefore it's surprising to hear the U.S. Chamber of Commerce talking as though the future of the republic hinges on preserving the secret ballot for employees deciding whether to unionize.

Here's Steven Law, the chamber's general counsel, on the subject of a bill that would allow workers to certify a union merely by signing authorization cards, rather than dropping slips of paper into a ballot box: "This is the most radical rewriting of labor law in 70 years," he told me last week. "People view it as a diminution of freedom."

The bill is the Employee Free Choice Act, which is the A-number-one legislative priority of organized labor this year. It's also No. 1 on the hit list of the Chamber of Commerce, which promises to mount what a chamber executive has called "firestorm bordering on Armageddon" to kill it. (An early strafing run was aimed at Labor Secretary-designate Hilda Solis, whose confirmation has been stalled by Republicans in part over her support for the measure.)

The EFCA aims to create a new regulatory regime for union-organizing elections, oversight of which falls to the cataleptic National Labor Relations Board. The NLRB sometimes takes years to resolve complaints alleging employer intimidation of organizing workers -- at which point it often merely orders a new election, thus starting the dismal cycle all over again.

The bill would require the board to give such cases top priority. It would also mandate that, once a union is certified, an employer negotiate an initial contract within 120 days, after which a federal arbitrator could impose a deal. And it would dramatically raise the penalties for unfair labor practices by employers, such as intimidating workers or firing organizers, during a unionization campaign.

Current law requires that illegally fired workers be given back pay; the EFCA mandates triple back pay and a $20,000 fine per violation.

But the focus of the business campaign against the bill is the "card check" provision. This would award certification to a union in any workplace where more than 50% of employees sign an authorization card stating they're in favor. Now, unionization requires a vote by secret ballot, triggered when more than 30% of workers sign the cards.

The chamber portrays card-check as an affront to human rights, like an election for president of North Korea. It argues that card-check certification will leave workers vulnerable to peer pressure to sign up. It recently hired a University of Chicago professor to write a study claiming that no change is needed because both management and labor have learned to live with the existing rules, although he doesn't say where he found a labor leader willing to admit being so complacent.

The chamber believes workers should be thankful that labor law tilts the field against unions, because employers are better at looking out for their interests.

Is that plausible? Let's see what family income figures tell us.

From 1947 to 1967, income inequality in the U.S. -- that is, the ratio of income between the highest- and lowest-earning households -- actually shrank. Since then, the ratio has taken a great leap forward (from the perspective of the rich). In 1968 the lowest-earning 20% of our households accounted for 4.2% of our national income, the top 20% for 42.6%. By 2007, the lowest fifth had only 3.4% of national income and the top fifth commanded roughly half. The share belonging to the middle class (the middle three-fifths of all households, say) shrank too, from 52.3% to 46.9%.

This trend has many causes. But it's certainly facilitated by the dilution of worker bargaining power associated with the decline of unionization, which has fallen in the private sector from 33% of American workers in 1955 to less than 8% today.

Labor advocates blame their difficulties expanding union membership partially on employers' improved skills in scaring workers off, including threats of factory shutdowns and the harassment of union advocates. (This is not to absolve union leaders, who can sometimes be their own worst enemies.) This all happens under the nose of a supine NLRB, which allows certification cases to drag on infinitely in what former NLRB Chairman William V. Gould, now a professor at Stanford Law School, calls "a 'Bleak House' nightmare." (The reference is to the Dickens masterpiece about a chancery case which lasts for, oh, 896 pages of narrative.)

And that's when the agency bothers to act. During the Clinton years, when Gould served, the board sought injunctions in labor-practice cases about 70 times a year. Under George W. Bush, that figure dropped to 17.

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