The 250,000 volunteers from AFL-CIO unions around the country may still be hoarse and weary from the dogged stretch effort to get out the vote for Sens. Barack Obama and Joe Biden, but they're taking a victory lap. Labor feels much more confident that their top legislative priority - a bill that would make organizing workers substantially easier - will be passed and signed.
The Champagne will have to stay on ice, however, because the debate will be fiery over the Employee Free Choice Act, which effectively would do away with employers' rights to insist that employees cast pro or con votes in a secret ballot election for whether they want union representation.
Many employers say that election, overseen by the National Labor Relations Board, is sacrosanct. Unions say the process, through which management in many cases tries to make a case to workers that a union is not in their best interests, is fraught with coercion and intimidation.
Under the proposed law, if a majority of employees at a workplace approve by signing authorization cards, a union will represent the group.
The Employee Free Choice Act - opponents call it the forced choice act, arguing the legislation would give labor a disproportionately heavy hand in organizing - would bring sweeping change to the 73-year-old National Labor Relations Act. It would spell hope for labor and anathema to many business interests.
An Obama win meant everything to labor, because Sen. John McCain is an ardent opponent of the legislation, and labor's ground game was impressive: Unions spent about $450 million in the election, and the effort was particularly helpful in battleground states. In all, union members connected with 13 million voters in 24 states, in the process selling the Employee Free Choice Act along with the Democratic ticket.
Still, the fight will be fierce.
"Right now, the NLRB process is working against workers," said Terence M. O'Sullivan, general president of the 508,000-member Laborers' International Union of North America. "We need a system where workers do not have concerns with fear and intimidation by employers."
"This battle will be a firestorm," said Randel Johnson, vice president of labor policy at the U.S. Chamber of Commerce.
The legislation is critical to labor's fortunes because unions' numbers have been sliding for years - with unions today representing only 7.7 percent of private-sector workers and 37.2 percent in the public sector. The causes for the decline are numerous - globalization, waning interest, entrepreneurial motivations, employer resistance and more - but now that the labor-friendly political stars are aligned - Obama and Biden were among co-sponsors of the Employee Free Choice Act that died in the last congressional session - labor's hopes are high.
The act passed the House in 2007 and had 51 votes in the Senate. But it needed 60 to overcome a Republican filibuster, and it failed.
In the aftermath of this month's election, Democrats have a 57 to 40 advantage in the Senate with three races still undecided. (Two of the 57 are independents who caucus with Democrats.) Even while it is doubtful the Democrats will reach 60, and there is a question whether conservative Democrats will come around, labor regards the act, also known as the card check bill, as central to a broad recovery package that also includes health care reform and infrastructure investment.
"They are all long-term structural economic issues," said AFL-CIO spokesman Steve Smith.
"We need it because, at a time when our nation's working people are living on the edge, a union card is the single best ticket to the train to individual and collective recovery," said AFL-CIO President John Sweeney.
Cards used to organize
In numerous unions, more organizing already occurs through authorized cards rather than an NLRB election. That is true with hotel workers, in gaming, food service, laundry and garment manufacturing in particular, said Mike Casey, president of United Here Local 2, the hotel workers union, in San Francisco.
The legislation is in part labor's response to rulings by NLRB members serving during President Bush's tenure. They are perceived as anti-union, such as rulings in 2006 that broadened the definition of supervisor. As a result of those rulings, as many as 8 million workers, including nurses, building trades and newspaper and television workers, among others, will be classified as supervisors and barred from joining unions, by the AFL-CIO's count.
"I agree with them, there's been a series of one-sided rulings by this Bush board" that has also acted slowly in resolving elections that determine union representation and charges of unfair labor practices brought by employees, said William B. Gould IV, a Stanford University emeritus law professor who was chairman of the NLRB during President Bill Clinton's time in office, from 1994 to 1998.
"These delays make it too easy for employers to intimidate and coerce workers, including dismissing them for organizing," said Gould. "And this in turn diminishes employee interest in unions and thus undercuts the right to collective bargaining they are supposed to enjoy," he added.
Still, Gould says "secret ballots to resolve union representation rights are the way to go," adding that Obama should meet Republicans halfway on bipartisan common ground. In his view, Obama should stay with the secret ballot election with an important coda - that elections should continue quickly after a union's petition seeking recognition is filed, within one or two weeks.
"Quick elections are the key to meaningful reform because delay is the principal way in which labor law stacks the deck against employees," said Gould.
Peter Hurtgen, another former NLRB member and chairman appointed by Clinton (1997-2002), now an employers' lawyer at Morgan Lewis & Bockius in Irvine, disputes the charge of board bias and inordinate delay.
Hurtgen provided statistics showing unions are winning well over 50 percent of NLRB secret ballot elections involving new organizing, while the NLRB said in a preliminary 2008 fiscal year report that 2,085 union-representation elections were conducted a median 38 days from the filing of a petition.
Hurtgen also likened organizing by authorization cards as "death by a thousand cuts," by which unions wear down an employer "until he has had enough." Hurtgen said, "In this process, unions don't organize employees, they organize employers. They can get the cards (signed) and the employer does not insist on an election and the union is in. Unions have been fairly successful at that."
On the other hand, Bill Samuel, the director of government affairs at the AFL-CIO, says that the "employer community is not focused on preserving the secret ballot elections; rather it is more about preserving the use of tactics that intimidate employees considering union representation."
Compromise not needed
Samuel also doubts that a compromise might have to be worked out in Congress - something like Gould's secret ballot election held expeditiously.
"I'm not going to forecast how the debate will unfold. We have a way to go to cover a filibuster. We are not there yet," Samuel said. "We are getting closer to a filibuster-proof Senate. It will include some Republicans," including a co-sponsor, Sen. Arlen Specter, R-Pa., he added.
There's no talk of compromise at the U.S. Chamber of Commerce, either.
"Labor has faced decades of declining membership and they see this as a bonanza to quickly reverse that trend," said Steven Law, the chief legal officer and general counsel at the chamber, in Washington.
"I think, from the unions' perspective, they invested $450 million on buying influence and they expect something for it. From our perspective, there is nothing in the Employee Free Choice Act that can be improved by shaving it."
Said the AFL-CIO's Sweeney, "If we are going to rebuild our middle class and (have) a sustained recovery of living standards, workers must have the freedom to form unions as counterweight to corporate power, as a way to bargain for a better life."
E-mail George Raine at
graine@sfchronicle.com.
http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/16/BU7B1436S5.DTLThis article appeared on page C - 1 of the San Francisco Chronicle
The Alliance for Worker Freedom created it's own scorecard as well. While many of the states Republican delegation received high ratings, Senator Specter tied Senator Bob Casey with a 0% rating. Other Democrats who also received a 0% rating are Fattah, Holden, Sestak, Kanjorski, and Murtha.
