Economy: EFCA Would Benefit Virginians

Del. James Massie's recent op/ed suggests that the Employee Free Choice Act will adversely affect Virginia's prosperity. On the contrary, the Employee Free Choice Act would help ensure ANN C.
HODGES
employees who choose to unionize the opportunity to negotiate for a share of their employer's profits. Higher employee incomes lead to more consumer spending and more taxes paid to the commonwealth.

The United States is a consumer-based economy. As we have seen in the past year, a low-wage, consumer-based economy is not sustainable in the long run. It fuels debt rather than savings, and extremes of poverty and wealth rather than a large and prosperous middle class.

In recent years, worker productivity has soared in the United States, yet wages have stagnated. Workers have not shared in the prosperity that they have created. Their spending was fueled by debt and the economy has suffered as a result. One need only look at history to see that periods of strong unions have paralleled a strong economy; when unions are weak, as in the Great Depression and the current recession, the economy is weak as well.

How would the Employee Free Choice Act make a difference? The act would make it easier for employees who want a union to effectuate that choice. Forty percent of employees desire union representation, while only 7.5 percent of private sector workers have it. Elections for union representation draw substantial corporate resources to defeat unionization, with discharges of employees occurring in 34 percent of campaigns, and threats to close the facility in 57 percent. Almost half of employee groups that choose representation are unable to obtain first contracts.

The sole remedy for bad-faith bargaining by employers is an order to bargain in good faith. Sophisticated employers can go through the motions of bargaining with no real intent to reach agreement. The delays occasioned by these tactics discourage employees who desire to unite with fellow employees to have a voice in their workplace and to share in the benefits of their productivity.

EFCA proposes a repair for the system with three simple changes. Employees can choose a representative if a majority sign cards requesting representation. No election is required. If the employees' representative and the employer cannot reach agreement after bargaining, a neutral arbitrator will determine the terms of the first contract. And finally, the penalties for interfering with the employees' choice of whether to have a union are given real teeth to deter violations.

Opponents of EFCA, well-funded employers and their organizations, urge the sanctity of the secret ballot to defeat the bill, a concern not expressed for the decision to oust an incumbent union, which can be accomplished without a secret ballot under current law. Massie even criticizes a proposed compromise, an election conducted on a shortened time schedule. He suggests that employers need more time to inform employees of the disadvantages of unionization.

It is clear, however, that while some employers campaign fairly, many use the campaign time for unlawful discharges and threats designed to interfere with the free choice of employees. Opponents also suggest that employees will be pressured by ferocious organizers. However, a recent study of four states that use a card check system for public sector employees found not a single instance of union intimidation of employees. Because employers, the source of employees' livelihood, have far more power over employees than unions, the risk and reality of employer intimidation increases as campaigns continue.

Like the card check system, neutral arbitration of contracts has been used for many years for unionized public employees. And many Canadian provinces have used first contract arbitration. The reality is that arbitrators very rarely decide the contract. The threat of arbitrator determination leads the parties to negotiate for a contract to govern terms and conditions of employment.

Today, there is no threat to force employers to bargain -- if they fail to bargain they get a slap on the wrist and an order to return to negotiations. As a result, labor disputes simmer and contracts are not resolved. Employers resist in hopes that employees will give up and return all power to the employer. Without powerful remedies, the law cannot deter this conduct.

The balance of power between employees and employers has been eviscerated in recent years. In the past, hard work and unions enabled workers to support their families, send their children to college, and provide for retirement. Today many face a future of labor without these fruits.

While the right to work law in Virginia will continue to limit both unionization and union power to improve the lives of workers, EFCA can help restore some much-needed balance, which will help revive the middle class and the American economy.

Ann C. Hodges is a professor of law at the University of Richmond. Contact her at .