Joining A Union, Easy As Organ Donation
June 19, 2007
Dmitri Iglitzin is a labor law attorney in Seattle with the firm of Schwerin Campbell Barnard & Iglitzin LLP and is an affiliate professor at the University of Washington School of Law.
In several European countries, people are legally presumed to want to donate their organs after they die, unless they have indicated otherwise. This legislation has dramatically increased the available of organs available for donation.
Similarly, after employer-sponsored retirement savings plans—401(k) plans—had been around for a number of years, it became apparent that while everyone agreed they were a good thing, most workers would not take the initiative of enrolling in them. So, in 1998, the Treasury and the Internal Revenue Service changed the rules to make it clear that employers could make enrollment the default outcome. Numerous studies since that time have demonstrated that making the desired outcome the “default” outcome substantially increases participation rights. As then-President Clinton said at the time, “It sounds like a small thing, but it’s one thing that can really affect a very large number of people in getting them into the business of saving for their own retirement.”
These experiences are relevant to any consideration of the merits of the Employee Free Choice Act (EFCA), the labor movement’s number one legislative priority, which has faced a buzz saw of criticism since it passed the House of Representatives in March of this year by a vote of 241 to 185. Unless advocates are able to successfully change the nature of the debate about this bill, through reference to the advantages of “presumed enrollment,” it may not even be passed out of the Senate, where it is currently pending, much less obtain enough popular support to persuade the current, or next, president not to veto it.
In many ways, the lack of overwhelming support for EFCA is surprising. Under current law, workers who want to form a union must currently undergo a risky, grueling and time-consuming “pre-election” period that culminates, if they’re lucky, in an election held under the auspices of the National Labor Relations Board (NLRB). If they’re not lucky, the workers are instead fired or otherwise discriminated against. One recent study, conducted by the Center for Economic and Policy Research, found that about one in five union organizers or activists can expect to be fired during the pre-election period.
Should the workers succeed in unionizing, moreover, their chances of ever obtaining a collective bargaining agreement with their employer are grim. According to the Federal Mediation and Conciliation Service, a federal agency, nearly half of newly organized bargaining units fail to negotiate a first contract within two years of a successful organizing drive. The result of these barriers to successful unionizing is manifest in the steady decline of union membership, now 12 percent of the workforce (7.4 percent in the private sector), down from 20 percent in 1983 and 35 percent in the 1950s.
The EFCA would address these problems in three ways. First, workers would be able to unionize through “majority sign-up”—a showing that a simply majority of them had signed authorization cards indicating their desire to be unionized. Second, if an employer and a newly-organized group of workers are unable to reach agreement on a first contract, the dispute will be referred to binding arbitration. Third, EFCA imposes stronger penalties upon employers for retaliating against employees who attempt to unionize, such as triple back pay for employees who are fired and civil fines of up to $20,000 for any violation committing during an organizing drive.
No one seriously disputes that passage of the EFCA would lead to an upsurge in the number of unionized workers in this country. Nor does anyone dispute that this upsurge would tend to counteract the increasing disparity of wealth, which has reached the point where the top 300,000 Americans collectively enjoyed almost as much income—21.8 percent—as the bottom 150 million Americans, up from 19.8 percent the year before and more than double their share of income in 1980.
The basis of the attack on the EFCA instead has been what has been characterized as its eradication of “the secret ballot,” a hallmark of our democracy. George Will wrote, for example, that “any member of Congress who was elected by a secret ballot should oppose the Employee Free Choice Act.” A fellow at the Heritage Foundation wrote that EFCA “actually makes a mockery of free choice. It prefers the agenda of union bosses over the right to confidential ballots enjoyed by workers for more than 60 years.” The Washington Post editorialized that employees “who are skeptical of or opposed to bringing a union into the workplace deserve the protections of a secret-ballot election.”
The flaw in this attack on EFCA is not only the hypocrisy of defending the current system as a veritable paradise of “secret ballot” elections, notwithstanding the well-documented evidence of overwhelming coercion used by employers against employees who seek to unionize. It is that the focus on “secret ballot” elections fails to recognize that, where social policy is or should be actively in favor of a result, rather than neutral, those results should be made the default, or presumed, outcome, as has been made the cases in the examples listed earlier.
In 1935, when Congress enacted the National Labor Relations Act, it held the philosophy that protecting the right to organize helped to restore "equality of bargaining power between employers and employees" and even to remove "sources of industrial strife" and to "safeguard commerce" from injury. Congress clearly saw workers' rights as good for the overall economy.
Nothing has changed since that time. A just-released study by the Campaign for America's Future estimates, in fact, that passage of the EFCA would increase union membership by 10 percent, providing an additional 3,537,625 people with health insurance and 2,773,045 more people with pensions. At a time when, according to the most recent government figures, 37 million Americans—one out of every eight Americans—are living below the official poverty threshold of $19,971 a year for a family of four, and more than 90 million Americans, close to a third of the nation, squeak by on incomes that are less than twice the official poverty line, this type of social change is desperately needed.
So there is nothing wrong with creating a system, as EFCA does, which actively favors unionization and places the burden of taking affirmative steps to avoid unionization on workers who do not want the increased wages and benefits unionization brings. To say that workers who supposedly do not want to be unionized, or employers who do not believe a union has majority support of the workforce, need to take an active role in requesting an NLRB “secret ballot” election to establish that fact, but that a workforce where a majority of workers have indicated in writing their preference for a union will be granted one, conflicts with no long-established American values, and does not provide any persuasive reason to oppose the vitally needed reforms which will be implemented by EFCA.