The Obama Presidency could make unionization easier

story by Michael Tilley

(What follows is an excerpt of a story written for the Arkansas Trucking Report.)

It’s been said with regard to Congressional legislation, nothing is ever as good or as bad as it appears.

Try imparting that homespun wisdom to the proponents and opponents of the proposed Employee Free Choice Act.

The Act, passed March 1 in the U.S. House of Representatives, could give American workers a less threatening, better protected environment in which to consider forming a union. On the other hand, it could result in a more threatening, less protected environment in which to consider forming a union. The range of conflicting opinion on the Act is between Heaven and Hell, Apple and Microsoft and Toby Keith and the Dixie Chicks.

To wit, when the House passed the bill (H.R. 800, 241-185), U.S. Rep. Steny Hoyer, D-Md. and House Majority Leader, said, “It’s simply about establishing fairness in the workplace.” U.S. Rep. John Boehner, R-Ohio and House Minority Leader, said the real effect of the bill is in “taking care of union bosses.”

This will be a fight, possibly the most rancorous between union and business leaders in many years. The U.S. Senate version of the bill (S 1041) remains in the Committee on Health, Education, Labor, and Pensions. Watchers on both sides expect Senate movement on the Act in early Spring. And many of those watchers believe the Act has a good chance of passage. The Democrats have more power in Congress, and President-elect Barack Obama supports the legislation.

“I support this bill because in order to restore a sense of shared prosperity and security, we need to help working Americans exercise their right to organize under a fair and free process and bargain for their fair share of the wealth our country creates,” according to a statement from Obama’s U.S. Senate office during his time in that legislative body. “The current process for organizing a workplace denies too many workers the ability to do so.”

The prestigious and nationwide law firm of Baker Donelson posts this advice on its Web site: “(I)t is imperative that employers who are non-union today begin a self-assessment of their union vulnerability in order to prepare for and potentially thwart any increased union activity in view of the possible passage of all or parts of the Employee Free Choice Act.”

THE ACT
The Employee Free Choice Act is an amendment to the National Labor Relations Act. Its primary elements include:

The “Card Check.”
The most controversial part of the Act would allow the designation of a union if a majority of employees sign pro-union authorization cards. Once the National Labor Relations Board validates the signatures, a union is created and collective bargaining with the employer begins.

The process is not so simple under current law. Today, if workers want to form a union, they need 30 percent of employees to sign authorization cards. With that 30 percent, the NLRB schedules a election — an election supervised by the NLRB under a complex set of rules intended to protect employees and employers from intimidation, coercion, etc. — and employees use secret ballots to vote up or down on union representation. Also, both sides have several avenues in which they can protest or appeal the outcome of the election.

The “Card Check” provision is so significant, i.e., controversial, that many of those for and against the Act refer to the entire Act as the “card check bill.”

Ironically, both sides agree that the card check provision removes the ability of workers to vote for a union in a private-ballot process overseen by the NLRB. However, union officials justify the card check change by arguing that the process to reach a private ballot is flawed in favor of employers. Opponents of card check simply cite the private ballot as a fundamental, if not sacred, component of a democratic society.

First contract mediation and arbitration.
Under the Act, an employer and union working on their first collective bargaining contract have 90 days to ink a deal. After that, either party may ask the Federal Mediation and Conciliation Service to mediate. If 30 days of FMCS mediation fails, contract arbitration would take place and the arbitrated contract would hold for at least two years.

Stronger penalties for employer violations.
Employers that willfully or repeatedly violated workers’ rights to form a union would face civil fines up to $20,000 per violation. Existing law does not allow for civil, monetary fines.
Also, an employee unfairly discharged or discriminated against as a result of union organizing could receive up to three times back pay.

THE PROPONENTS
Union officials and other Act supporters push three basic reasons in their call for adoption of the Employee Free Choice Act. (See www.aflcio.org for more about the union perspective on the Act.)

1. To prevent management threats during union activities.
Union officials say the significant declines in union membership are largely the result of employers who intimidate (with threats of plant closings, job losses, etc.) or coerce (by increasing wages or benefits in return for rejecting a union) employees into voting against collective bargaining. Union membership has declined from 31.8 percent of the U.S. workforce in 1948 to 12.5 percent in 2004.

According to the AFL-CIO, the country’s largest labor union: “Employers routinely intimidate, harass, coerce and even fire workers who try to form unions and bargain for economic well-being.”

Union talking points also contend that the Employer Free Choice Act merely balances the ability of workers to form a union with the options an employer has to decertify a union. Union officials say the same majority card check needed to form a union can also be used by employees to decertify a union.

2. Reverse declines in workers’ wages and benefits.
The AFL-CIO claims that union workers earn 30 percent more than non-union workers. Also, according to the labor group, union workers are 63 percent more likely to have medical and health insurance through their jobs. Union workers are nearly four times as likely to have a guaranteed pension, and 77 percent more likely to have jobs that provide short-term disability benefits.
“Why does this matter? Economic inequality is the hallmark of our time. Wages have stagnated. Only 38 percent of Americans say their families are getting ahead,” said Nancy Schiffer, associate general counsel of the AFL-CIO, during Congressional hearings on the Act.

3. Public support for unions.
A poll commissioned by the AFL-CIO indicated that 77 percent of Americans support giving employees the ability to make decisions about forming a union without pressure from employers. Critics of the Act cite an obvious reliability problem with the poll — it was commissioned by the AFL-CIO.

THE OPPONENTS
The Heritage Foundation, a Washington, D.C.-based think tank, is one of the more active opponents of the Employee Free Choice Act. The foundation makes three points in its opposition.

The Act creates unfair labor practice penalties for employers but not for unions. This encourages, according to the foundation, union organizers to adopt any tactic necessary to create a union while restricting employers from almost any reasonable effort to lobby against forming a union.

By removing the need to vote in a secret ballot, the Act would open employees up to threats and coercion from union organizers AND employers.

“Private ballots ensure that workers’ decisions about whether to join a union remain private so that no one can threaten workers for making the ‘wrong’ choice,” according to a Heritage Foundation research paper. “With card checks, both the company and the union know how workers voted, and this exposes workers to the possibility of retaliation. Though threats are illegal, they still occur, and not all of them are made by employers.”

Because the Act could resulting in binding arbitration between employers and the union, wages, benefits and other contract realities could prove harmful to the long-term health of the business, “leaving management and workers to deal with the consequences,” the foundation noted.

The American Trucking Associations, a Washington, D.C.-based trade group representing the trucking industry, has teamed with the U.S. Chamber of Commerce and several hundred chambers and trade groups around the country — including the Little Rock Chamber of Commerce and the Arkansas Hospitality Association — to pressure members of the U.S. Senate to block the Act.

The groups formed the Coalition for a Democratic Workplace (www.myprivateballot.com) in an attempt to counter the lobbying pressure from numerous large union groups and their Web sites.

“ATA is philosophically opposed to taking the right of the secret ballot away from employees. The name of the bill is a misnomer because it takes away a key freedom of workers — to vote by secret ballot in elections for certification of union representation,” said Clayton Boyce, ATA vice president of public affairs and press secretary.

The concern, of course, is the potential union organizing of the more than 3.5 million truck drivers in the country and the more than 9 million who are employed in the national trucking industry.

Not all trucking companies fear union involvement.

Fort Smith-based Arkansas Best Corp. is a transportation holding company that operates ABF Freight System, an LTL carrier that is the second largest trucking company in Arkansas and the 15th largest in the country. It reportedly has very low turnover among drivers compared to other non-unionized LTL and truckload operators.
Its drivers are represented by the Teamsters, which means 76 percent of the company’s 11,430 employees are employed through a collective bargaining agreement, according to David Humphrey, a spokesman for Arkansas Best.

The company, Humphrey said, is not commenting on the Employee Free Choice Act.
Nevertheless, the Arkansas Trucking Association, of which Arkansas Best is a member, intends to lobby against the Employee Free Choice Act.

“Employees are not gullible and they usually see through the rhetoric and support what is best for their company because that creates stability for their job,” said Lane Kidd, president of the Arkansas Trucking Association. “Unions do have a challenge but not because it’s difficult to join them. With a few exceptions, most business owners want happy employees and their employees simply don’t want to give up a big chunk of their paycheck to dues.”

ARKANSAS CONGRESSIONAL  POSITIONS
U.S. Sens. Blanche Lincoln, D-Ark., and Mark Pryor, D-Ark., have yet to voice a position on the Employer Free Choice Act. Comments from both offices have been vague because each senator find themselves in a political pickle: They both represent pro-business state but are hoping to appease a Democrat leadership in the U.S. Senate tied solidly to the union lobby.

Lincoln did vote earlier this year to move the Act to the Senate for debate and a vote.
Pryor also voted for debate and a vote on the Act. maintains a somewhat neutral position.

“Employers have concerns with the bill removing their right to require a secret ballot election before recognizing a union. Employees have concerns that the existing National Labor Relations Board process for union campaigns and elections can be unfairly obstructed too long when a majority of workers wish to form a union,” Pryor said in a statement. “The legislation would not overturn or weaken Arkansas’ ‘Right-to-Work’ law. I will work to ensure any legislation that passes the Senate protects the rights of employers, workers who wish to form a union, and workers who do not wish to be represented by a union.”

In the House of Representatives, U.S. Reps. Marion Berry, D-Ark., Mike Ross, D-Ark., and Vic Snyder, D-Ark., voted for the eventual House passage of the Act. U.S. Rep. John Boozman, R-Ark., voted against the Act.