I am a lifelong union man: an organizer, negotiator, staffer and leader. I believe in unions and their importance for our society. That’s why I think HR 800, the Orwellian-titled “Employee Free Choice Act” is an abomination. And more than that, it is not good for unions.
Unions function effectively when they can build a mandate of support from their members. EFCA would make it possible to organize unions without such a mandate, and thereby destroy the basic legitimacy of a union’s claim to represent a majority.
HR800 has passed the House and is waiting in the Senate for a filibuster-proof Democratic majority to pass it and President Obama to sign it.
EFCA contains four changes to long-standing labor law. The one receiving most attention would require the National Labor Relations Board to certify unions without elections, solely on the basis of a “card check”
The second would require interest arbitration, having an arbitrator set the terms and conditions of employment, for first contracts that are not bargained within four months. Such arbitration tends to distort and atrophy real negotiations, and result in an “arbitrator’s award” rather than a mutually-agreed-on contract. The essence of all labor law on enforcement of agreements flows from contract law; without a contract, enforcement becomes arbitrary indeed. It’s like having judges create the law.
The other changes would expedite investigation into unfair labor charges made during a certification process, and increase penalties for employer violations. These are good changes, exactly what is needed to make election campaigns more fair; they ought to be passed.
But eliminating elections amounts to de-legitimizing unions even where they exist. It may look like a kind of affirmative action, but in fact it is far worse.
Under current law, unions can only be certified by majority vote in a secret-ballot election (unless the employer agrees to a card check). Existing unions can also be de-certified through the same process. EFCA would upset this balance, making it easier to bring a union into a workplace than it would be to throw one out.
Currently, union de-certifications are rare (though unhappy union members talking about it are more common). When a group of workers get cards signed to de-certify their union, they then have to go through an election campaign, and the union has a chance to defend itself. This is only fair, and it promotes stability.
If unions could be de-certified by card-check alone, labor officials would be in for some rude surprises, as anti-union organizers might be able to run stealth campaigns and get cards signed (through fair or dubious methods), and Bingo! You’re out!
That is of course why the union-drafted EFCA has no provision for de-certification by card check. But how likely is it that labor would be able to hold off a push, sooner or later, to re-even the scales by including it?
And even if the Democratic sweep is big enough Tuesday to get EFCA passed as it stands, the loss in legitimacy for unions will be devastating. Most Americans think of labor unions as legitimate voices for workers, even though few belong to unions. That level of legitimacy will be lost if the House of Labor becomes a kind of Roach Motel where workers can check in but they can’t check out.
The underlying problem is that unions have shrunk almost to the point of no return in the private sector. Union leaders admit that they pursue EFCA because they cannot organize under the present regime of effective employer campaigns and interminable legal delays. It is an act of desperation.
There is another path labor could take. It could ask itself why so many workers find unions so unattractive, and it could make changes to become more attractive. But they are unwilling to face the central fact of their difficulties: workers have come to see unions as political organizations for which Democratic Party victory is more important than workplace gains.
In the 1930’s when the AFL proved unable to organize industrial workers, far-sighted union leaders built a new type of union for the purpose: the CIO. We could use some similarly far-sighted leaders today. EFCA will just delay the day.
Labor’s best hope is that it be denied the kind of protection it seeks. The law should be changed to make elections fairer, not to eliminate them.
From National Review Online, 11/4/08: