Mark Westphal is bullish on the future of organized labor. After decades of decline in many sectors, there suddenly seems to be a lot of good news for union members. Union membership saw its biggest gains in a quarter-century in 2008, with unions representing 12.4 percent of the workforce, according to the Bureau of Labor Statistics, up from 12.1 percent.
That trend could soon be bolstered by the passage of the Employee Free Choice Act, a revision to the nation’s 70-year-old labor laws that union leaders say will make it easier to form unions and win initial contracts for employees. Democrat leadership – which has even larger majorities since the 2008 election – has promised to pass it again, while President Obama has said he will sign it.
Westphal sees the legislation as a long overdue rewrite that will restore balance between labor and ownership and help to reverse the economic erosion of the working class.
“This is really about restoring the economic power that has been taken away from the middle class for the past 20 years,” says Westphal, president of the Fox Valley Labor Council. “The playing field has been tilted toward the employers. This will level things.”
But the definitions of tilted and leveled really depend on where you stand in the debate.
For much of the business community, the EFCA is seen as anything but free choice. They see it as denying workers their rights to self-determination and denying management the flexibility to run a business in a highly competitive market.
It’s also seen as particularly onerous given the current state of the economy.
The EFCA essentially consists of three parts. It would allow unions to be recognized without an election if 50 percent of the employees sign a union card, require mediation then arbitration if an initial contract cannot be reached in 90 and 120 days, respectively, and impose more stringent penalties for employers for rules violations.
The changes regarding elections have generated the most discussion the past few years. Known as card-check, it has generated a fierce debate about the balance between organizing and employee choice.
From labor’s point-of-view, the election requirement subjects employees to disinformation campaigns by management. Statistics from the Service Employees International Union show that one in seven organizing efforts survive from filing with the National Labor Relations Board to the election.
“By the time we get to the ballot – sometimes six months to a year – the company can put on a lot of pressure,” Westphal says. “It’s not your typical free ballot election. This would eliminate the pressure from both sides.”
But hearing from both sides is just the point management would make. If the card-check system were adopted, employees would never get a chance to hear the other side.
“What gets lost is that there might be good reasons not to have union representation,” says James M. Kalny, a labor attorney with the Green Bay firm Davis & Kuelthau. “They won’t ever hear those reasons if this goes through.”
While the card-check provisions have grabbed the majority of the attention, the contract negotiation provisions have the business community just as worried, especially if companies that have never dealt with unions before suddenly find themselves trying to negotiate a contract within 90 days of the union being recognized.
“The arbitration piece just does not reflect the realities of labor negotiations,” says John Metcalf, director of human resource policy for Wisconsin Manufacturers & Commerce. “The larger a business is, the more complex the process. Both sides need time to do their homework.”
That’s more likely to happen if there is an imposed deadline, says Tony Vanderbloeme, president of the Greater Green Bay Area Labor Council.
“My experience – and I have been doing this for 40 years – is that the idea of arbitration is enough to get both sides to the table and working in good faith,” Vanderbloeme says. “That’s the last thing either side really wants.”
From ownership’s point of view, arbitration means someone without knowledge of the business and its labor force is making the decisions, which could have negative effects for both labor and management.
“It results in a loss of flexibility in a lot of areas such as scheduling and job assignments,” says Robert Burns, who also practices labor law with Davis & Kuelthau. “That sort of encumbers the whole idea of being lean and quick on the feet.”
One thing both sides do agree on is that EFCA will mark a major shift in labor relations and both sides are treating it accordingly. Labor groups spent millions in the 2008 elections to elect members of Congress friendly to the legislation. Business groups have unveiled a lobbying and informational campaign aimed at countering that influence.
Interestingly enough, the stimulus package proposed by Obama and passed in late January by the House contains none of the provisions of the EFCA. Both sides are hoping their message is not lost as the economy continues to slump.
“I know the economy has taken the top priority, but we need this right now,” says Vanderbloeme. “We want our businesses to succeed, but without unions, there will be no middle class. That’s what we are trying to restore.”
Burns says unions’ struggles have nothing to do with inadequacies in current law, but with a message that is not as attractive to workers. The process needs to remain fair, he says.
“Their message does not resonate,” Burns says. “When employees get to hear both sides they realize union membership might not mean what they thought it would when they signed the card.”