7-17-05, 8:55 am

The freedom to join a union is a basic right guaranteed under the law. But as two new reports show, the main process whereby workers can choose union representation — NLRB-certified elections — stacks the odds unfairly in favor of employers waging aggressive anti-union campaigns. The studies — one commissioned by Congress Republicans and another by the non-profit American Rights at Work — reveal that alternatives like card-check recognition create a more level playing field, allowing workers to choose with less employer harassment and intimidation.

The reports come as Congress is debating two key bills with clashing aims: the Employee Free Choice Act (H.R. 874) seeks to empower union organizing efforts by legally protecting card-check recognition, while the Secret Ballot Protection Act (H.R. 1696 and S. 842) seeks to cripple them by effectively outlawing card-check.

Card-check recognition occurs when an employer agrees to recognize a union when it shows that it has majority support among workers, usually expressed though simple authorization cards. It is increasingly the favored organizing method of unions because it eliminates the lengthy delays NLRB elections typically involve.

'Labor Union Recognition Procedures: Use of Secret Ballots and Card Checks', a May 2005 draft report by the Library of Congress’ Congressional Research Service — shows how card-check recognition would likely increase unionization rates. It cites evidence from Canada where union success rates were 91% over an 11-year period when card-check was allowed, while it dropped to 73% when it was revoked from 1984-1992. While inadequate research has been conducted in the U.S., it is estimated that card-check could increase union win rates 10-20%. Supporters of the Secret Ballot Protection Act have not made these findings public for obvious reasons.

A second report, 'Free and Fair? How Labor Law Fails U.S. Democratic Election Standards', released in June by the non-profit American Rights at Work, shows how the NLRB election process creates a David-and-Goliath dynamic that amplifies employer power as it silences pro-union voices. Written by Dr. Gordon Lafer of the University of Oregon, the study highlights six basic components of free elections that are systematically denied to those seeking union representation: Equal Access to the Media. Employers have total control of communications in the workplace while unions are restricted to distributing literature only during break time. Freedom of Speech. Employers can ban discussion of the proposed union outside the break room while employers have no such restrictions. Equal Access to Voters. Employers can distribute a steady stream of anti-union correspondence but pro-union workers lack access to employee home addresses until they can document that 30% of the workers want a union. Voter Coercion. Workers are subjected to thinly veiled statements stopping short of explicit threats and bribery. Timely Implementation of Voters’ Will. Workers can face infinite delays in the implementation of election results, particularly if employers drag out the appeals process. Campaign Finance Regulation. Anti-union employers have access to resources that few unions can hope to match, and some hire costly anti-union lawyers and consultants to push the union out.

As the report points out, perhaps the biggest problem with the NLRB election route is the drawn-out and delay-ridden process of setting an election date. After 30% of workers demonstrate support for the union, an election is not held for another 60 days — in the best-case scenario, and it’s usually even longer. Delays with setting the date are routine as employers stall by contesting the proposed makeup of the bargaining unit and other issues. And the longer it takes to get an election date, the longer employers have to intimidate workers with captive-audience meetings, harassment or the threat of firings.

Taken together, the reports reveal the high stakes of current Congressional debates over labor law reform. Under current law, employers can voluntarily recognize unions based on card-checks but are not required to do so. The Secret Ballot Protection Act, introduced in February by sponsor Congressman Charlie Norwood (R-GA), is the latest effort by the anti-union lobby and their allies in Congress to help drive unions into extinction. It would require secret ballot elections for union certification and, crucially, prohibit a union from being recognized based on a card-check.

The Employee Free Choice Act, sponsored by Senator Edward Kennedy (D-MA) and Representatives Peter King (R-NY) and George Miller (D-CA), would reform labor law in the opposite direction; it seeks to increase the power of card-check recognition. It would require employers to recognize a union after a majority of workers sign authorization cards. (Under current law employer recognition is optional.) The bill also calls for mediation and arbitration of first-contract disputes and stronger penalties for employers who use illegal tactics to drive out a union.

At the heart of the debate then is whether unions’ most powerful organizing tool will be enhanced or destroyed.

Given the obstacles, it is perhaps surprising that union win rates in elections are on the rise, and have been increasing for eight consecutive years. In 2004, unions won nearly three out of five (59%) NLRB representation elections, the highest win rate in 20 years.

But the number of representation elections is continually declining as unions seek out alternative models of organizing. There were 2,339 NLRB elections in 2004, down slightly from 2,351 in 2003. These numbers are about one-third lower than in the 1990s, when more than 3,200 elections were held annually.

In the mid-1980s, the AFL-CIO started aggressively promoting alternatives to elections, and many unions are looking to leave that process behind entirely. Two of the largest unions, UNITE! and HERE (now merged), organized 85% of new members in 2003 through card-check recognition.

Proponents of the Secret Ballot Protection Act would be happy to wipe out this more streamlined and democratic route to union recognition. Their aim is transparent: to take unions’ most promising organizing tool away and allow employers to continue to have the upper hand. If unions are to have a fighting chance in the uphill battle of organizing in the new economy, it is essential that this bill be defeated.

From Labor Research Association