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Yes: Organizers now face many unfair hurdles

Published: Tuesday, May 15, 2007

Relations between employees and management have changed dramatically since the 1950s, but our nation's labor law remains frozen in the era of tailfins and fedoras. The Human Rights Watch Report detailing Wal-Mart's ruthless anti-union tactics is just the latest evidence of how outmoded our law has become. Wal-Mart's 1.3 million U.S. workers, none represented by a union, hardly need reminding. But a bill recently passed by the House of Representatives and awaiting debate in the Senate offers hope by providing workers with a fair chance to form unions.

Currently, workers can form a union in one of two ways: sign authorization cards or initiate an election process supervised by the National Labor Relations Board. However, labor law allows workers to secure union representation through signed cards only if their employers agree to go along. While some employers remain neutral in an organizing campaign and recognize the union if a majority sign up, most employers insist on an extended election campaign so that they can attack unions and browbeat their supporters.

Over weeks or months, employers hold lawful mandatory meetings at which they "predict" dire consequences if the union wins, and supervisors meet one-on-one with employees to probe for evidence of union sympathies. Employers also can use unlawful tactics, especially firing union supporters, knowing that remedies are woefully weak and can be delayed for years. It is no surprise that employers and their advocates wax eloquent about the election campaign as the "crown jewel" of our labor-relations system. For workers seeking union representation, the elections process often is a crown of thorns.

The Employee Free Choice Act would allow a majority of employees to choose union representation by signing valid authorization cards. Elections could occur if employees prefer them, or if a union and employer agree on them. But the bill would give employees the same option employers have: relying on majority signup to create a recognized union.

Although the election-based approach enjoyed wide support for many years, it now needs reform. Employers always have had the ability and authority to oppose unions. Since the 1970s, however, American businesses have exercised this authority with increasing ferocity.

Three-fourths of U.S. employers hire union-avoidance consultants to run anti-union campaigns, to the tune of several hundred million dollars a year. Worker coercion and intimidation have risen accordingly. Union supporters were illegally fired in one in four elections as of 1990, compared with one in 20 elections during the 1950s. A recent report estimated that actively pro-union workers face almost a 20 percent chance of being fired during a union-election campaign. Other studies indicate that almost half of all private-sector employees who do not have a union wish they did; more than half of those workers say that management resistance is the main reason they don't have one.

Some observers worry the bill will replace employer coercion with union coercion. But there is very little evidence of union coercion or misrepresentation over the 70 years that authorization cards have been used to demonstrate union support. In Canada, where labor laws long have allowed union majorities to be certified based on cards, there have been remarkably few union coercion cases. That should not be surprising. Unions have little leverage to coerce employees even if they were so inclined. Unlike employers, they lack power over employees' livelihoods.

Others argue that employers deserve a fair chance to make their case against unions; majority signup could result in employers being surprised before this can occur. But employers have had the chance to promote a nonunion regime well before the union makes an appearance, and many do so as standard procedure.

Finally, opponents claim that secret-ballot elections are the American way. But an election to create a unionized workplace will never resemble a contest in which an incumbent can be voted out of office and the two sides wield comparable resources. Employers control the workplace; they have the ability to identify pro-union employees and the power to deter or punish them. Under the bill, employees would be allowed to choose whether they wish to run that election gantlet.

The need for labor-law reform is linked to a larger national conversation. Over the past 30 years, the shrinking role of unions in the American economy has been accompanied by stagnating earnings and a growing gap between workers in the upper and lower tiers. Those developments are hardly due to an outmoded labor law alone. Globalization, improved technology and other broader economic changes present challenges as well as opportunities for American workers and employers.

But labor-law reform is a vital piece of the puzzle. Enactment of the bill would allow many more workers to secure enhanced wages and benefits and a stronger voice in their workplaces, through union representation and collective bargaining.

James J. Brudney is a professor of law at the Ohio State University Moritz College of Law and is a former chief counsel and staff director for the U.S. Senate subcommittee on labor.


Yes: Organizers now face many unfair hurdles

Published: Tuesday, May 15, 2007

Union membership in America has been on the decline for several decades. In the 1950s, nearly 35 percent of all private-sector employees were union members. Today, fewer than 8 percent belong to unions. There are various reasons for the decline in union membership, including significant changes in employment patterns. A few decades ago when workers stayed employed at the same factory for their entire work lives, union membership and the job protection it provided made sense. Today, employees can expect to change jobs several times during their work careers, so unionization provides little benefit.

Additionally, many workers believe that unions, which once worked to secure valuable services, including workplace safety rules and reasonable benefits, have become obsolete. Unions' unreasonable demands and threats of work stoppages have made many American businesses less competitive in the global marketplace, forcing layoffs and sending jobs overseas. Many employees have come to realize that unionization may in the long run put their jobs at risk by making their employers less competitive.

In recent years, union bosses have been desperate to find a way to artificially prop up membership, and they may have found their tool to do so in legislation passed by the U.S. House of Representatives earlier this spring. The misnamed Employee Free Choice Act, which is pending in the U.S. Senate, has several objectionable provisions, but the most egregious is a mandate to change the manner in which a union is certified in a workplace.

Under the current system, if 30 percent or more of the employees indicate interest in unionizing by signing an authorization card, union organizers may go to the employer and demand voluntary so-called card-check recognition. The employer may then either recognize the union or demand an election, which would be overseen by the National Labor Relations Board. The legislation would end the ability of the employer to seek an election if a labor organizer presents the employer with the signatures of a majority of employees supporting unionization.

This proposed mandatory card-check system, with no recourse for an election, would have a significant negative impact on employers and employees. Under the current system, the election process allows both sides -- the union organizers and the employer -- to educate workers on the pros and cons of unionizing.

The NLRB has strict guidelines for conducting the campaigns to ensure workers are not unduly pressured by either side. The goal of the NLRB in conducting the elections is to ensure that employees have the ability to exercise free choice. An employer may not fire or threaten to fire any employee for his or her actions to promote unionization. While both sides may present their cases prior to the election, there is a cooling-off period of 24 hours just prior to the election whereby organized presentations during work hours are prohibited and no campaign activity is permitted within the polling vicinity.

The union bosses and their advocates object to the election process, alleging that it is somehow unfair because employers illegally threaten employees' jobs during the unionization campaign. The facts, however, do not support the allegation. According to James Sherk of the Heritage Foundation, a review of NLRB data reveals that only about 1.5 percent of unionization campaigns involved an employee being illegally fired, and unions actually win more certifying elections than they lose.

Charles I. Cohen, a former NLRB member appointed by then President Clinton in 1994, points out that in the "overwhelming majority of cases where employees choose not to be represented by a union, they do so based on information that is presented by both sides during the election process."

Under the current system, businesses have the ability to educate their employees on their vision for the future and the potential impact of unionization. And, of course, the union has the ability to present its side. This is the type of free speech that should be preserved to ensure employees are making informed decisions on unionization.

The act is even more threatening for employees, who under the current system are protected from coercion by either side. The private ballot allows employees to vote their conscience, free from having a union boss looking over their shoulders.

U.S. Rep. Pat Tiberi, R-Genoa Township, who voted against the act, points out that the legislation "not only deprives employers of their ability to share their side of the story about the impact of unionization but also places employees at risk of undue pressure from union organizers and takes away their right to cast a secret ballot."

Both the NLRB and the U.S. Supreme Court have recognized that "secret elections are generally the most satisfactory -- indeed the preferred -- method of ascertaining whether a union has majority support." That election process should be preserved.

David J. Owsiany is the senior fellow in legal studies for the Buckeye Institute for Public Policy Solutions.

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