By Jonathan Cutler
Union leaders have a legislative plan that they say is part of the solution for rebuilding a strong labor movement: Make it easier to get into a union. They are pressing congressional Democrats to adopt the so-called “Employee Free Choice Act” that would, among other things, replace the secret ballot union election with a proposed “card check” system that would have a union certified as the sole bargaining representative for workers after 50 percent of employees in a designated unit sign petition cards.
Although the loss of the secret ballot may expose workers to various forms of intimidation, there is something attractive about the notion that it could be as easy to get union representation as it is to get legal representation. But that notion would only make sense if accompanied by another: It should be as easy to replace an ineffectual union as it is to replace a lousy lawyer.
Employee free choice means nothing if workers cannot dump an inept union. But for more than 50 years, the National Labor Relations Board has used an obscure rule — the so-called “contract-bar” doctrine — to strictly limit the ability of workers to trade in an incumbent union for a more attractive competitor. The NLRB will not consider petitions for a challenge election during the first three years of any contract between an incumbent union and an employer. The board will only hear petitions submitted during an intentionally narrow window — the 60 days before the third anniversary of a contract. The rationale for the policy is unambiguous: When there is a conflict between industrial stability and freedom of employees’ choice, stability is the paramount consideration.
But it is not just government that favors stability and unity. Incumbent unions love the security afforded by a government policy that blocks external challengers and thwarts escape by union dissidents.
It is no coincidence, then, that in late February the Service Employees International Union — one of the unions pressing most aggressively for the “easy-entry” card-check provision of the Employee Free Choice Act — invoked the “no-exit” contract-bar rule in an increasingly fierce battle with activist health care workers from its enormous 150,000-member local in California who want to dump SEIU and join a rival group, the National Union of Healthcare Workers.
More than 50 percent of employees represented by SEIU at Kaiser-Permanente have signed petition cards requesting the switch to the competitor union. But SEIU enthusiasm for petition cards seems not to apply in this instance. The SEIU says it will not accept a check of petition cards as evidence of popular support for the National Union of Healthcare Workers.
Indeed, it has gone further by asking that the NLRB deny the Kaiser employees’ request for a secret ballot challenge election.
Incumbent unions are not the only ones who seem to fear the whole business of union competition — raiding, poaching, challenge elections, etc. Many so-called “pro-labor” academics recoil at the idea of union rivalry. Catherine Fisk, a professor of labor law at the University of California, Irvine, recently warned that employers would probably try to capitalize on the schism.
“Historically, fights within unions have been used by employers to their advantage,” Fisk said. “It’s the classic divide and conquer strategy.”
But that old dog won’t bark. In March 2008, one of the nation’s most prominent law firms specializing in helping employers manage labor trouble distributed a memo analyzing the growing challenge to the SEIU. The memo warned that “this struggle” would “almost certainly” result in “an energized and aggressive” union movement “in California and elsewhere.” The “debate” will force all contenders to prove that they “can bargain strong contracts and organize new members effectively.” “Employers are advised,” the memo concluded, to prepare for “more aggressive organizing and collective bargaining campaigns.” In other words, prepare for a strong labor movement.
But that strong labor movement depends on real employee free choice. In the last instance, union revitalization does not await the end of the secret ballot in union elections but the end of the contract-bar doctrine and the freedom to replace ineffectual unions with nimble, hungry challengers.
Jonathan Cutler is associate professor of sociology at Wesleyan University. He is the author of “Labor’s Time: Shorter Hours, the UAW, and the Struggle for American Unionism.”
Source: Hartford Courant