Congressional Quarterly Magazine, March 4, 2009, Thursday

Congressional Quarterly Magazine

March 4, 2009, Wednesday
Congressional Quarterly Magazine

Can ‘Card Check’ Alter Unions’ State?

By Finlay Lewis, CQ Staff

American labor unions believe they are on the verge of something they haven’t seen from Congress in many decades: legislation that could enable them to recruit new members on a massive scale. A sweeping change in labor law, known as card check, would allow unions to organize a workplace once a majority of employees sign authorization cards — avoiding the secret-ballot elections that gained prominence in the wake of the 1947 Taft-Hartley law.

The elections have put union organizers at a disadvantage, labor advocates say, because they allow management to coerce workers to vote down union drives. Business lobbies such as the U.S. Chamber of Commerce and the National Association of Manufacturers counter that card-check drives will invite intimidation from union representatives — while also abridging the liberties protected by secret ballots in any popular election.

Amid this heated debate about the procedural features of a card-check system, however, there’s not much discussion whether card check will, in fact, produce a dramatic spike in union membership — the specter that unions frequently invoke to rally their supporters and that business groups use just as often to scare theirs.

Certainly the legislation — which also provides for swift, binding arbitration in case of a stalemate on the card-check vote and stiffer legal penalties for employers who tamper with organizing efforts — is the broadest proposal to change labor law since President Jimmy Carter’s ambitious overhaul stalled out in a 1978 Senate filibuster. Still, the overall impact of the bill will be hard to measure, given longer-term shifts in the labor economy and the impact of the present recession.

When the 1935 Wagner Act legalized collective bargaining, most workplaces seeking union representation were manufacturing sites, with high concentrations of receptive workers. Now, with a predominately service economy and companies that can easily move from country to country, the challenges of union organizing are far more logistically daunting — and are further complicated by the ailing economy.

But backers and opponents of card check agree on its potential to revamp fundamental workplace relations. The measure “is something along the lines of the initial Wagner Act and Taft-Hartley amendments” in its impact, said Keith Smith, the National Association of Manufacturers’ director of employment and labor policy. It would be, he said, “a radical overhaul of our labor system.”

Most observers agree that the reinstitution of card check should yield immediate gains for unions, which now represent an anemic 7.6 percent of the private sector workforce (public sector workers have a robust 36.8 percent rate of union membership). When Canada employed a card-check system, union enrollment reached 39 percent by the mid-1980s. That number dropped 7 percentage points between 1984 and 1998, though, when seven of the country’s most populous provinces switched to mandatory elections roughly akin to the American secret-ballot system, according to a 2004 study published in the Industrial and Labor Relations Review. Some provinces have switched back.

Analysts caution, though, that the U.S. and Canadian labor markets are too dissimilar for strict comparisons. Union-busting consultants, a common feature of U.S. management, have never taken deep root in Canada. The Canadian social contract has always resisted straight-on laissez-faire economics, as evidenced by the country’s single-payer universal health care system and other welfare-state protections. The upshot, according to U.S. labor consultant Jonathan Tasini, is a country that regards union membership as a natural fallback for workers, particularly in hard times.

A Brave New Workforce

That’s not been the case for the United States in the past 40 years or so. Private sector union membership peaked in 1953 at 35.7 percent of the U.S. workforce. Since organized labor’s heyday, the character of the American workplace has changed profoundly. Employers are much more footloose in a globalizing economy, according to former Labor Secretary Robert B. Reich, among other experts — rendering once secure manufacturing jobs hostage to intense competition.

That means the real measure of card check’s success will likely be in non-manufacturing workplaces, especially the service sector, which now accounts for 80 percent of all economic activity and which historically has been tougher for unions to organize.

“That’s what this is all about,” said Richard W. Hurd, who teaches labor studies at Cornell University. Hurd notes that many service workers are part-time or regard their positions as temporary, which leaves them impatient with the cumbersome National Labor Relations Board election rules that govern union drives. “Something that speeds the process gives an opportunity for unions and workers in these lower-wage service sector industries,” he said.

The other key factor in stoking new organizing is the condition of the economy. In most recessions, unions actually lose strength since layoffs tend to be concentrated in manufacturing, the traditional stronghold of the labor movement. And recession-fueled anxieties about job security can make would-be union recruits leery about actions that could be seen as threatening to employers’ interests.

However, labor economists say that a deep and prolonged recession could stimulate union membership. In fact, the modern union movement came of age during the Depression with the key protections of the Wagner Act. At the same time, the intense rivalry between the American Federation of Labor and the Congress of Industrial Organizations broadened union recruiting from a more narrow, craft-based model to industrywide appeals to unskilled workers.

In either of these scenarios, it will be hard to gauge how much of a direct impact card check would have on organizing efforts. “If there is a big turnaround in union successes in winning union-representation elections, I don’t think it will be the decisive thing that makes a difference,” said Gary Burtless, a senior fellow in economic studies at the Brookings Institution. He contends that a more salient motivation to unionize in a long recession grows out of “workers’ feelings of solidarity that they’ve been screwed by their employers.”

Shifting Public Sympathy

That does seem to match today’s public mood. Financial industry executives have been criticized for getting luxury perks and lavish bonuses when the government was bailing out their firms. A recent CBS/New York Times poll found that 83 percent of respondents supported President Obama’s $500,000 salary cap for financial executives receiving money from the Troubled Asset Relief Program — although 59 percent said they believed such funds would benefit only bankers and not ordinary Americans. Public opinion on unions has likewise shifted into a more positive register: In 1984, three years after President Ronald Reagan’s historic dismissal of striking members of the federal Professional Air Traffic Controllers Organization, just 30 percent of nonunion employees polled by Peter D. Hart Research Associates indicated interest in joining unions; by 2006, that figure had increased to 53 percent.

Those findings presumably will be a factor as lawmakers prepare to put the card-check bill to the test — and key Democratic champions of the measure, such as California Rep. George Miller and Massachusetts Sen. Edward M. Kennedy , try to line up support among their pro-business colleagues, including Southern lawmakers from traditional anti-union, right-to-work states. Early union hopes that a vote on card check could be part of the Obama administration’s “first 100 days” initiative have fallen to more urgent legislative priorities, such as the stimulus law. But some Hill watchers say a vote on the measure could be held this spring. Meanwhile, business and labor lobbies are still spending furiously to reach a magic number to defeat the legislation or propel it forward in a Senate cloture vote, which proved the death knell for card-check legislation in the 110th Congress.

In any event, the steadfastly right-to-work President George W. Bush would have vetoed that earlier measure. Obama campaigned aggressively on card check’s behalf in 2008, however, and labor advocates are confident that his support, combined with shifts in the public mood, will produce a political boon to unionism that will reverberate well beyond the bill’s immediate impact on union membership. “The union movement never grows slowly; it grows in great leaps,” said Nelson Lichtenstein, who directs the University of California at Santa Barbara’s Center for the Study of Work, Labor and Democracy. “That’s why it’s so important that the political culture shifts and, as it changes, a real burst forward for unionization is possible.”

FOR FURTHER READING: Labor campaign spending and card check, 2008 CQ Weekly, p. 2556; 2007 card-check bill, 2007 Almanac, p. 9-7