Unclear whether labor law update would expand employee choice


How difficult should it be for employees to form a union? The proposed amendments to federal law embodied in the Employee Free Choice Act would remove some of the hurdles that have historically stood between organizers and collective bargaining.  But experts are divided on the question of whether the increased power to unionize would actually reflect the autonomous choices of employees or if the Act’s proposed changes would simply increase the coercive power of unions. Professor Thomas A. Kochan, who is the co-director of the MIT Sloan School of Management’s Institute for Work and Employment Research, debated the question with former Dept. of Labor Solicitor Eugene Scalia, son of Supreme Court Justice Antonin Scalia ’60, on Monday, November 30th, in an event sponsored by the Federalist Society and the John Templeton Foundation.

The new labor law would institute “card check” unionization (a method by which a minumum number of employees must sign cards indicating a desire for union representation), automatic recourse to binding arbitration when collective bargaining stalls, and higher penalties on employers for unfair labor practices. Scalia, a partner at Gibson, Dunn, & Crutcher, said that the EFCA would give unions greater power in exactly those situations when their interests are not aligned with those of workers. “Unions have self interests of their own to serve,” he said. “They see a moment to get this through. They want this because union membership is declining.”

Scalia sees card check unionization as eliminating “the hard won right to vote one’s conscience.” As evidence that the election model does not give unionization efforts short shrift, he cited statistics that unions won more than 68 percent of elections last year, the highest proportion in years. Scalia believes that the secret ballot is “absolutely necessary” to avoid abuse. “It is really not credible that the reason unions support card check is to prevent intimidation,” he said. “Unions want a monopoly on intimidation.”

But according to Kochan, the rights of employees to unionize are not being adequately respected in the U.S. today. “The evidence is overwhelming that American labor law is broken.” Under the current system, employees interested in unionizing must gather at least 30 percent employee card check approval, at which point the federal government supervises an election by secret ballot. Card check unionization would eliminate the election and make the initial process of checking cards determine if a workplace will be unionized, once a majority has indicated approval.

Kochan said that this change is necessary because many who would like to join unions give up because they are “subject to delays both legal and illegal.” He cited data indicating that a third of those who pass the current card check hurdle never manage to conduct a full election to determine if the workers will actually unionize. “You lose an enormous number just in the early stages,” he said. “The majority never reach the endpoint.” In addition to legal challenges to the preliminary steps, Kochan said illegal activity by employers creates an additional set of actual impediments to unionization. According to Kochan, there are approximately 300,000 labor law violations by employers every year.

Another EFCA provision that the panelists addressed was mandatory, binding arbitration if a company and union representatives could not draft a collective bargaining agreement within a certain window of time.  While arbitrators are generally known for “acting like a judge,” Scalia believes that labor arbitrators would be “writing the contract” and “acting like legislators”. He questioned who the arbitrators would be, whether qualified people could be found to perform that role, and emphasized the “enormity” of the implications of the arbitration provision.

“When you’ve got an arbitrator sitting down and writing how you can run a business, that can be life or death,” said Scalia. “I think it would be an even greater disruption to the economy than card check itself.”

Kochan minimized the possibility that contracts determined by arbitrators would have major effects for businesses. He said that the scope of arbitration was limited and that “arbitrations are by nature conservative”. “Arbitrated agreements almost always mirror negotiated agreements,” he said. “I’m a critic of arbitration for not being as innovative as we would want it to be.”

For Kochan, the arbitration process would provide a way to ensure that more agreements are completed. Moreover, he believes the threat of binding arbitration would lead to 90 percent of contract negotiations ending in negotiated settlements, while the success rate currently stands at only about 60 percent. Kochan also disputed the argument that it would be difficult to find qualified arbitrators. “There is no rocket science to being an interest arbitrator,” he said.

Ultimately, Scalia and Kochan differed on the nature of unions in the U.S. and the reasons for their recent struggles. Kochan said that the union system has been responsible for the success of companies such as Southwest Airlines but has been damaged since the 1980’s. “You can see that this process is clearly broken,” he said. “We ought to fix the law and fix it systematically.”

Scalia, however, described unions as losing traction because of savvier companies raising working conditions and wages, blunting workers’ desire for unionization,  and increasing competition as well as their own success. Furthermore, Scalia believes that federal entitlement and social safety net programs have replaced many of the core functions unions once served in the regulation of economic activity. “Unions have put themselves out of business by asking the government to do the things they used to do.”


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