The Bismarck Tribune, June 14, 2009, Sunday

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The Bismarck Tribune

June 14, 2009, Sunday

HEADLINE: Showdown nears on Employee Free Choice Act

BYLINE: BRIAN DUGGAN Bismarck Tribune

BODY:
In 2007, Sens. Byron Dorgan and Kent Conrad gave their support to a bill known as the Employee Free Choice Act, a measure that sought to make it easier for unions to organize.

The bill died in the Senate when its supporters could not muster enough votes to end a Republican filibuster, send-ing labor interests back to the drawing board.

Two years later, things have changed - namely a larger Democratic majority in the Senate and a Democrat in the White House who has given his support to the legislation. Now, multi-million-dollar campaigns are being waged in Washington and around the country as an attempt to pass or defeat the legislation.

Support from North Dakota's delegation also has weakened, at least for the current version of the bill, which seeks to make unionizing easier for workers as well as forcing contract negotiating between workers and employers.

"Just as I believe no one should be forced to join a union, those who wish to organize should not be prevented from doing so," said Dorgan, D-N.D. "I've concluded there are problems with our current system, and we need to take some type of action to address them. The question now is what the final bill will look like."

Conrad, D-N.D., and Rep. Earl Pomeroy, D-N.D., have made similar statements.

The debate is playing heavily on television and radio commercials. Tens of millions of dollars have been spent across the country, including North Dakota, promoting or denouncing the legislation.

But the issue isn't necessarily on the minds of most Americans.

"It's one of these really important fights to a small, mobilized group of people," said Mark Jendrysik, a political science professor at the University of North Dakota. "But generally underneath the radar for the average American."

The minds that need winning, Jendrysik said, are members of Congress.

Hordes of chambers of commerce members from around the nation have come to Washington to lobby their dele-gations, including the North Dakota Chamber of Commerce that has spent $200,000 trying to defeat the legislation.

Labor groups also have spent millions promoting the bill as well as lobbying congressional members.

The scrutiny has led many in Congress to back off from explicitly backing the bill, including North Dakota's dele-gation.

"What public person elected to an office wants to stand up at this point in time and draw a line in the sand given that public abuse?" said Dave Kemnitz, president of the North Dakota AFL-CIO.

What would the bill do?

Primarily, three things:

* It would make it easier for workers to unionize by requiring a simple majority to sign authorizing cards - known as card check - to indicate they want to form a union. Under the Employee Free Choice Act, workers would still be able to use a federally monitored secret ballot if a third of them signed an authorization card indicating they want an election.

* It would require federal mediation if a contract is not agreed upon by workers and management after 90 days of a union organizing. After 120 days, if no agreement is reached, federal authorities would begin a legally binding arbitra-tion process.

* It would also impose penalties, up to $20,000, for employers illegally blocking workers from unionizing.

"It's a major change in the operations of unionization, probably the most significant change since the 1930s when you got the reluctant willingness of ownership to allow for unionization," said David Flynn, an economist at the Uni-versity of North Dakota where he directs the Bureau of Business and Economic Research. "It's not a small change."

Unionization rates have fallen among American workers in the last three decades from 20.1 percent in 1983 to 12.4 percent in 2008, according to the U.S. Bureau of Labor Statistics.

Proponents say the legislation is a means to reverse that trend by ending what they say are unfair practices on be-half of employers that stymie the efforts of workers trying to organize.

"There's a lot of room for improvement in the system today," Kemnitz said. "I don't see how anyone can legiti-mately defend the documented coercive atmosphere that employers generate when employees seek to collectively bar-gain."

But the U.S. Chamber of Commerce has taken up the fight, running commercials around the country denouncing the so-called "card check" aspect of the bill, which chamber members say is undemocratic and could lead to coercive practices on behalf of unions.

MacIver, president of the North Dakota Chamber of Commerce, said that is his primary contention with the bill.

"I'm not opposed to unions," MacIver said. "That's the way this country is founded; you have that right. So why is it that someone wants to take that secret ballot away? It is un-American."

MacIver also notes that the National Labor Relations Board reported in 2007 that 93 percent of all initial union elections take place 54 days after a petition is filed to unionize.

Other provisions in the bill, some say, are more important to unionizing efforts than the so-called "card check." Af-ter all, they reason, what good is a union election without a bargained contract in the end?

In a June 3 Washington Post op-ed, Kate Bronfenbrenner, the director of labor education research at Cornell University's School of Industrial and Labor Relations, said the most important aspect of the Employee Free Choice Act are the new rules that would expedite contract negotiations between workers and employers, imposing federal mediation after 90 days and then arbitration after 120.

"Fifty-two percent of workers who form a union are still without a contract a year after they win an election, I found," Bronfenbrenner wrote, referring to her recent study, "No Holds Barred: The Intensification of Employer Oppo-sition to Organizing." "And 37 percent remain without a contract two years after the election."

Bronfenbrenner's study used data from 1,004 NRLB certified union elections between 1999 and 2003.

But MacIver said the Employee Free Choice Act is more about unions trying to grow members in light of dwin-dling participation among American workers.

"Why would we in North Dakota want the government coming in here to tell us what to do?" MacIver said.

He jokes: "They've done a great job so far with the rest of the country."

Effect on North Dakota

For North Dakota, a state with a history of low union participation, it's still too early to tell what would happen if the bill were to pass, Flynn said.

The Peace Garden State has the 12th lowest union membership rate in the country at 6.1 percent of all salary and wage earners in 2008, down from 6.4 percent in 2007, according to the U.S. Bureau of Labor Statistics.

Currently, the North Dakota AFL-CIO has about 100 local unions representing approximately 20,000 workers in North Dakota, according to its Web site.

With a booming economy in North Dakota, "gains have been significant on a per capita basis," Flynn said. "It's tough to see the union situation being significantly valuable to the labor force in North Dakota. We still are growing."

In comparison, North Carolina has the least union members in the country at 3.5 percent, followed by Georgia and South Carolina. New York, on the other hand, had the nation's highest union membership rate at 24.9 percent, just ahead of Hawaii and Alaska.

There are factors in the North Dakota workforce that could suggest employees could become more inclined to un-ionize as a means to increase their wages, Flynn said.

"There's a bit of an underemployment situation in North Dakota, people who are working more than one job to make what is considered a full time salary," Flynn said.

North Dakota does have the sixth highest rate in the nation of workers with multiple jobs at 8.7 percent of the workforce, a trait found in most Midwestern states.

However, analysts with Job Service North Dakota also note that because of the state's growing economy, given its low population, more work is available for those who want it.

Still, Flynn said, if workers in North Dakota feel they could get a better deal by unionizing, perhaps the Employee Free Choice Act could invite more to do just that.

"A year or two down the road, is there a possibility that these things might start to bite and have an impact on the bottom line for business? Sure," Flynn said.

Political support

Opinion polls conducted nationally have shown little knowledge among the public about the bill.

In a Gallup poll released in March, which is when the legislation was introduced in this Congress, 53 percent of Americans said they would support a bill that "would make it easier for labor unions to organize workers." The poll has a margin of error of plus or minus 3 percent.

"In this context, with the arguments against card check yet to be fully aired and debated, it could be a troubling sign for unions that no more than 53 percent of Americans immediately support this fundamental aspect of the card-check bill," wrote Lydia Saad, a Gallup analyst.

A majority of Democrats and Independents, 70 percent and 53 percent respectively, supported the notion of easier union organizing, while 60 percent of Republicans opposed it.

However, 65 percent of those polled told Gallup they were not closely following the debate over the legislation. The 12 percent that said they were following the bill very closely were more likely to oppose it.

Meanwhile, an April NBC News/Wall Street Journal survey found that 45 percent of Americans opposed a bill that, "would allow workers at a company to join a labor union if a majority of workers at that company sign a petition saying they want to form a union, rather than by requiring the vote take place in a federally supervised secret ballot election as they do now."

Those in favor totaled 42 percent with 13 percent undecided. The survey had a margin of error of plus or minus 3.1 percent.

N.D.'s delegation

All three North Dakota lawmakers in Congress supported a similar bill in 2007, with both Conrad and Dorgan co-sponsoring the legislation. That bill was ultimately defeated in the Senate.

But now, with Democrats nearing a 60-member majority, the Employee Free Choice Act could pass this year de-spite support growing tepid among many previous supporters, including Dorgan, Conrad and Pomeroy.

Sen. Blanche Lincoln, D-Ark., said recently that she could no longer support the legislation, delivering a major blow to the prospects of the bill ultimately passing. Currently, the entire GOP caucus is likely to oppose the bill.

And while Sen. Arlen Specter, D-Pa., who defected from the Republican Party this year, has given some signals that he could be warming to an aye vote, the senator's vote is anything but certain, despite supporting it in 2007.

And to make matters more complicated, Minnesota has yet to send its second senator to Washington, which many observers speculate is likely to be the Democratic challenger, Al Franken. Without Franken, Democrats are still one vote shy (counting one reliable Independent vote) of the magic 60 needed to end any potential filibuster.

While the Employee Free Choice Act has riled up the business and labor interests in Washington and around the country, a much larger fight over health care reform looms on the horizon.

"It's going to be brutal," Jendrysik said. "It's going to make this fight over card check look like a walk in the park."

The Employee Free Choice Act is still in committee, awaiting the go ahead by congressional leadership to push it to a floor vote.

When that might be is anybody's guess, Jendrysik said.

(Reach reporter Brian Duggan at 223-8482 or brian.duggan@bismarcktribune.com.)

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