As Barack Obama enters the second six months of his presidency and the Democrats achieve a majority of 60 in the U.S. Senate, the raft of legislation working its way through Congress on any number of landmark issues is beginning to gain momentum. From health care reform to climate change, interest groups supporting such legislation know they must strike while the iron is hot – and before campaigns for midterm elections begin in earnest next year.
That’s why labor union representatives were traveling Montana last week in an attempt to generate support for the Employee Free Choice Act, a bill that would enact the most significant changes to U.S. labor law since the National Labor Relations Act was passed under Franklin D. Roosevelt in 1935.
The Employee Free Choice Act, also known as the “card check” legislation, would make it easier for employees in the workplace to form unions.
“This bill doesn’t take away any employer rights,” Steve Bech, assistant business manager for the Local No. 768 of the International Brotherhood of Electrical Workers, said. “It just helps the employees to make a decision.”
But business interests are lining up against the bill, led in Montana by the state Chamber of Commerce.
“All the way around, we just think there are real flaws with the bill,” Webb Brown, Montana Chamber of Commerce president, said. “We think this is not only going to be bad for employers, but bad for employees and bad for Montana’s economy.”
At its core, both supporters and opponents of the measure argue that the other side’s approach leads to intimidation and coercion of when it comes to forming unions.
The bill seeks to enact three key changes. Under the bill, if more than 50 percent of employees sign a card saying they want to form a union, the National Labor Relations Board (NLRB) automatically certifies it. In the current system, only 30 percent of employees need to sign a card requesting a secret-ballot election. Then, if a majority votes for the union, the NLRB certifies it.
But this gives employers a measure of control over the process, in that a company can decide whether to hold a secret-ballot election, or allow the union to be formed through majority sign-up. The company can then refuse to bargain with a union formed through majority sign-up, or string out the election process for indefinite amounts of time, which supporters of the Employee Free Choice Act charge is too common.
The bill would also increase violations for employers that violate the law during union organizing campaigns, and require binding arbitration between labor and management if contract negotiations go beyond 120 days.
Supporters of the legislation say it would benefit the economy, particularly in Montana, by growing the middle class at a time when American workers’ wages have remained stagnant while their productivity has increased. Amanda Harrow, a spokesperson for the AFL-CIO in Montana, cited a study by the left-leaning Center for American Progress Action Fund, which found that if present unionization rates in Montana rose to the 1983 level, workers in the state would earn an additional $74 million annually in wages and salaries.
“It is good for the middle class to improve our jobs, our retirement, our benefits,” Harrow said. “It’s when we have a strong middle class that people can support local businesses.”
Union membership has been on the wane in Montana for decades. A study by the U.S. Bureau of Labor Statistics found union membership in Montana at 12.2 percent of the employed in 2008, roughly a third of what it was during the 1960s. And out of the current union members, the vast majority are public employees.
Supporters of the legislation attribute some of this decline to legislative changes over the last 60 years that have consistently made it tougher for employees to form unions, and say the Employee Free Choice Act would give workers more options.
“It’s a legitimate way for people to express their desire to form a union,” Robert Struckman, spokesman for the Service Employees International Union in Montana, said. “It’s not the way people make their decision, but that they get to make their decision free from intimidation, free from harassment.”
But opponents of the bill counter that its main purpose is to boost membership in unions whose size, influence and reach are dwindling.
“Workers are not seeing the benefits of joining a union,” Brown said. “I really feel they’ve lost their way; I think that’s why their numbers are declining.”
Brown charges that the bill could run the risk of interfering with businesses by mandating a government arbitrator settle disputes, and it could force higher wages out of small companies in an economy where profit margins are already thin. Furthermore, he added, the illusion of higher wages could be mitigated by having to pay union dues.
“It’s a sneaky way, I think, of selling something that they can’t sell straightforwardly, so they’re doing it kind of backdoor,” Brown said.
But the chief opposition to the legislation stems from whether it would do away with the secret ballot, thus allowing workers to coerce other workers into forming a union, even if those workers may not want to.
That’s the basis of Montana Republican Rep. Denny Rehberg’s opposition to the bill.
“Americans have long fought for their right to vote by secret ballot because it helps prevent intimidation and ensure privacy,” Rehberg said in a statement. “Unfortunately, the Employee Free Choice Act would replace the long-standing tradition of secret ballot union elections with a majority card check. This would strip millions of workers of their fundamental right to a secret vote, exposing them to potential coercion and reprisals from both employers and union supporters.”
But supporters of the bill call this a false premise, noting that the bill would allow for the formation of a union through a secret ballot or majority election.
“This bill has absolutely nothing to do with the secret ballot, period,” Struckman said. “That’s a red herring and the fact that this is a subject is a public relations success by the U.S. Chamber of Commerce.”
While Rehberg’s stance is clear, the same can’t be said for Montana’s senators, neither of whom are saying which way they plan to vote on the bill, which could make its way to the Senate this summer. Sen. Max Baucus and Sen. Jon Tester, both Democrats, were co-sponsors of the 2007 bill. But in 2007, any lawmaker supporting the bill knew then-President George W. Bush wouldn’t sign it. With a Democrat in the White House, the political considerations are more serious, since the legislation stands a better chance of becoming law.
Spokespeople for both senators indicated they are taking a “wait-and-see” approach on the bill.
“The Senate Health Education Labor & Pensions Committee hasn’t taken action on this bill yet,” Patrick Devlin, a spokesman for Tester, said. “Jon doesn’t serve on this committee, but he’s been listening to Montanans who are for it and Montanans who are against it as he gathers all the facts before deciding what’s the right for Montana.”
Baucus staffers said he is waiting until details on the bill are settled – particularly regarding how it handles the secret ballot issue, binding arbitration and seasonal workers – before making a decision.
A vote on the Employee Free Choice Act is certain to test moderate Democrats in the House and Senate – and its unlikely to be the last tough vote in 2009.