WSLC Reports Today -- March 7, 2007

For more than seven decades, U.S. labor law has promoted freedom of association and the right of workers to organize in the private sector. But the genesis of the Employee Free Choice Act that passed the House lies in the fact that its promise has not been realized.

The system of secret ballot box elections provided by the National Labor Relations Act is broken because that statute allows employers to resist union organizational efforts through delay and coercion. The effect is to undermine attempts by employees to bargain collectively and to choose workplace representation freely.

The Employee Free Choice Act would remedy some of this by allowing workers to organize on the basis of employee-signed authorization cards through which unions may represent workers once a valid signature has been obtained. This method of obtaining union recognition when a majority of workers sign them can be accomplished more quickly than the ballot box. And the act backs it up with stronger remedies.

The new act is an improvement on the status quo but it is hardly a cure-all for what ails labor. Its impetus flows from organized labor's precipitous decline to 12 percent from 35 percent that labor possessed a half-century ago. Yet it is unlikely that law reform alone will affect this picture appreciably. Sophisticated employers who use labor law loopholes do so in the shadow of other factors driving union avoidance, not least of which is globalization. Whatever the outcome of this year's free trade debate, those dynamics are unlikely to change.

Moreover, low-wage workers in restaurants and meat-packing plants, for instance, will remain vulnerable to the threat of capital punishment-type deportation to Latin America if they are undocumented -- and by virtue of a 2002 Supreme Court ruling, they are unprotected by labor law. Under any circumstance, those employees are reluctant to protest employment conditions, as are part-timers and temporary agency contingent employees.

Finally, though the act can only expand employee free choice, labor will have to devote more resources to organizing the unorganized in the best of legal worlds. Two AFL-CIO palace revolts in the past decade highlight the profound dissatisfaction that many unions have with labor leadership itself in this arena.

Nonetheless, law reform is relevant to the decline of the labor movement, albeit a subsidiary factor. Even more important, respect for the rule of law in the workplace is at its lowest ebb since the 1930s, a phenomenon that any democracy can ill afford. This is the most important reason for enactment of the new amendments.

But, in so doing, Congress should be aware that the substitution of card-signing procedures for the NLRA's discredited election machinery is a switch from one imperfect method to another. If recognition of unions is to be mandated on the basis of cards, it should be done so only where employees have paid union dues or an initiation fee. Frequently peer pressure from pro-union employees can produce card signatures -- a phenomenon less likely to occur where the deliberation inherent in payment is required.

And perhaps a supermajority of 60 percent when cards are used should be part of the bargained compromise with the Senate, where the filibuster has made that body the graveyard of labor law reform since the '70s.

Although the act as presented is less than perfect and would provide nothing more than a modest bump in union membership at best, it is a step toward more employee free choice and economic democracy. The Bush White House has threatened a veto and, whatever happens in the Senate, any vote will not be veto-proof. It seems likely that only a Democratic White House will produce the necessary reforms. But, at the very least, the act's passage will promote an ongoing dialogue.