On this Labor Day, union membership continues to decline. There are many reasons for this shrinkage: the restructuring of the economy away from manufacturing toward services, the advance of workers in past generations into the middle class and union-busting tactics by corporations and institutions. But as workers share of national income has declined over the last two decades, as the middle class has shrunk and inequality has grown, why have unions not rebounded? One reason is the impediments put in the way of union organizing by the regulations and judgments of the National Labor Relations Board. Chief among these is the requirement of secret ballot elections, now so encumbered with legal obstacles that union-busting businesses have the upper hand over workers seeking to organize.
To level the playing field, the House passed the Employee Free Choice Act last March, which would permit unions to organize if the majority of workers gave their authorization by what is usually called a check-card method, the procedure followed in most of the industrialized world. But in June a motion to close debate and move to a vote in the Senate, where 60 votes are needed to end a filibuster, failed 51 to 48.
The E.F.C.A. would restore the organizing procedure that was established in the Wagner Act. The bill would also provide workers with some countervailing power in the form of mandatory injunctions against unfair labor practices committed during organizing campaigns. Opponents maintain that restoring the older procedures would eliminate government supervision, violate worker privacy and expose workers to union coercion.
The N.L.R.B., an independent federal agency established in 1935, was created to enforce the N.L.R.A. primarily through recognizing a union as legitimate if it had been selected by workers who signed authorization cards and by ruling on grievances that workers brought against employers. The mission of the N.L.R.B. was altered significantly, however, with the passage of the anti-union Taft-Hartley or Labor-Management Relations Act of 1947. Taft-Hartley permits employers to recognize a union voluntarily after the presentation of signed cards, but it also allows employers to demand a secret ballot election that forces workers to vote for or against their earlier choice. Accordingly, today the vast majority of employers refuse to recognize the authorization cards in favor of a much more time-consuming election that is supervised by the N.L.R.B.
The trial-like N.L.R.B. hearings that precede a secret ballot election afford the employer numerous opportunities to discredit the workers choice as expressed through their signed cards. Employers hire sophisticated and expensive union avoidance firms that essentially put the workers on trial by challenging the size and composition of the bargaining unit, an individuals status as an employee under the N.L.R.A. and by engaging in other legal maneuvers designed to discredit the union. It can take years before an election is ordered and even longer before bargaining begins, since some employers reject the election and must be compelled to bargain by federal courts.
The Employee Free Choice Act would restore rights that workers have lost through the years. The Act would require the N.L.R.B. to certify a union as the exclusive representative of the employees when a majority of the employees in a unit appropriate for bargaining has signed valid authorizations. Since E.F.C.A. essentially recognizes the signing of authorization cards as an election, there is no need for yet another election that is demanded by employers. The act would also streamline contract negotiations by requiring that parties who cannot agree to a first bargaining agreement within 120 days must submit the disputed issues to arbitration.
The Employee Free Choice Act is the most important piece of labor legislation in the past 72 years. Both the spirit and the letter of this act strongly resonate with Catholic social teaching, from Rerum Novarum to Laborem Exercens. It deserves to be made the law of the land.