By Julius G. Getman and Thomas C. Kohler, SPECIAL CONTRIBUTORS
Published with the authors' permissions;
The Austin American-Statesman (Monday, April 02, 2007)
Link to original article
Congress is considering the Employee Free Choice Act. If passed, it will be the most important labor legislation enacted in nearly 50 years. Among other things, the law would require an employer to bargain with a union that is able to demonstrate majority support without going through the elaborate election procedures that are now required, by virtue of a series of highly questionable National Labor Relations Board rulings.
The bill also provides for mediation and arbitration to resolve bargaining impasses during negotiations for a first contract. And it would establish meaningful sanctions for employers who violate the law while employees are attempting to organize or negotiate a first contract.
The bill is certain to be controversial because it provides a quick and sometimes informal system in place of the formal secret ballot process used by the labor board to resolve questions of union representation. The idea of a secret ballot election has instinctive appeal. But the board's election process no longer performs its intended function: "encouraging the practice and procedures of collective bargaining" through "protecting the exercize by workers of full freedom of association."
Polls show that many workers fear reprisals if they openly support unionization. Their concerns are not groundless. Workers who openly support unions regularly are fired. The labor relations board may find an unfair labor practice has occurred in such cases, but illegal discharges are difficult to prove and the remedies are notoriously weak.
Under current law, an employer who violates free-choice policy faces no fines, no criminal penalties and no treble damage awards. At worst, the employer may be ordered to reinstate the unlawfully discharged employees - and to award them back pay, minus the employee's interim earnings. However, such cases typically take years to wend their way through complex administrative and judicial processes. The representation election will be long over before an unlawfully discharged employee finally is reinstated. And scholarly studies show that workers who are fired for their union activities, even those found to be unlawfully discharged by the board and the courts, usually do not return to their former jobs. The few who do are likely to be fired or forced from the job shortly thereafter. Thus, aside from the possibility of small back pay awards, the law does almost nothing to deter employers from taking reprisals against union supporters.
If a union successfully overcomes the employer's enormous advantages and wins an election, the law requires an employer to negotiate with the union in good faith. But employers have learned that the remedies for bad faith bargaining are laughably feeble. Employers who willfully refuse to come to agreement suffer nothing more than a labor board order not to do it again. Only about half of initial contract negotiations by newly elected unions result in a collective bargaining agreement.
The result of this unfair system is striking. Though polls show that over 50 percent of employees would like to be represented by a union, only about 10 percent are. The sad fact is that the board's election process is unreliable and unfair, marred by employer power, employee vulnerability, woefully inadequate statutory protection and bloated bureaucratic procedures that permit the frustration of "free choice."
It is time to reestablish the right of workers to unionize and bargain collectively. The Employee Free Choice Act would go a long way towards such revitalization. This bill has the potential to make the policy of free choice a living reality. Passing it would be a fitting way for Congress to indicate its willingness to take action to uphold the interests of working-class Americans.
Getman holds the Earl E. Sheffield Regents Chair at the University of Texas School of Law. Kohler is a Boston College Law School professor. They specialize in labor law.