The AFL-CIO, as well as its allies such as American Rights at Work,
has invested a great deal of time, energy, and money in promoting passage
of the Employee Free Choice Act (EFCA). Those of us who believe in collective
representation hope that this initiative will fulfill the hopes of its
promoters and produce a major advance in the number of workers covered by
collective agreements. However, with continuing control of Congress and the
White House by Republicans, the odds against passage of the Act would seem
to be high. Even if it should surmount the odds and pass, there are reasons
to expect that the results will, unfortunately, fall short of expectations.
Among the key elements of the Free Choice Act that are intended to spark
new organizing are card-check certification, first-contract arbitration, and
stiffer penalties for employers who offend the law. Since the commission by
employers of unfair labor practices during certification election campaigns
and stonewalling during the negotiation of first contracts are common practices,
it seems obvious to American unionists that the establishment of procedures
designed to counter those practices will significantly improve the labor movement's
organizing prospects. Maybe, but that is not what the Canadian experience
indicates. In the private sector, where industrial relations are regulated
by a legal framework similar to the one in effect in the United States, union
density and bargaining coverage are falling even in provinces such as Saskatchewan
and Quebec that have card-check and first-contract arbitration clauses in
effect (Adams 2006a). In the past several decades, union density in the Canadian
private sector has fallen from about 30 percent to less than 18 percent (Godard
2003; Adams 2006a). Despite devoting significant new resources to union organizing
in the 1990s, Canadian unions have been unable to recruit enough new members
to make up for attrition due to industrial change (Jackson and Schetagne 2004).
Moreover, the entry into Canada of aggressively anti-union employers such
as Wal-Mart may have emboldened employers to take stronger positions on union
avoidance. Despite a well-funded and strongly focused campaign and the Canadian
legislative advantages, the United Food and Commercial Workers Union was unable
to achieve a collective agreement with any Wal-Mart outlet through 2005. When
issues in dispute at one certified store in Quebec were submitted to first
contract arbitration, the company shut down the store (Adams 2005).
Research in the United States indicates that nearly 60 million
currently unorganized American workers would like to have collective representation
via government-certified agents. There can be little doubt that overt
employer opposition is a major cause of this unfulfilled demand. The
Employee Free Choice Act is designed to make it costly for employers to thwart
unionization by disobeying the law as they now do frequently with impunity.
The theory is that fear of costly penalties will result in less law breaking,
and less law breaking will result in more successful organizing. The theory
may be true, but, even if it is, how much of a difference will it make?
The Canadian experience indicates that the net benefit will
be minimal. Employer opposition is effective even when employers refrain from
illegal activities. Most unorganized Canadian employers make it known that
they do not want to deal with a union and that any effort at unionization
will be regarded as an unfriendly challenge to managerial competence and good
will (Bentham 2002). Although illegality is not as prevalent in Canada as
it is in the United States, most employers take the union avoidance steps
that are legally available to them when the union organizer comes to call.
In doing so they create a union-demonizing atmosphere. Combined with the availability
of legal union avoidance, the existence of such an anti-union climate is enough
to stop most people from organizing. Publicly expressed or even implied employer
opposition to certification plants in the mind of the unorganized worker
the seed that to organize is to upset the apple car,to make the employer angry,
and to identify oneself as a troublemaker. A good example of this effect in
practice is the Stelco and Subsidiaries Salary Employees Association (SASSEA;
see www.sassea.ca).
When the Steel Company of Canada put itself into a state of bankruptcy
protection in 2004, unorganized salaried employees formed an association to
represent their interests. Although the company had dealt with certified
shopfloor unions for decades, the leaders of the new association felt
compelled to make it clear that the initiative was intended to be a representation
mechanism only during the bankruptcy proceedings. They explicitly stated that
SASSEA was not a full-fledged trade union and there was no intention of developing
it into one. They promised that the identity of those who joined the association
would not be divulged to management. In short, even in a situation where collective
bargaining is well established, the climate is such that yet-unorganized employees,
although clearly desirous of relevant collective representation, are reticent
to exercise their basic right to organize in order to participate over the
long run in the governance of their employment relations.
Employer opposition is especially effective when coupled with the
majoritarian dynamics of the Wagner Actømodel legal framework that is in effect
in both Canada and the United States. Even if the EFCA goes through, those
employees who want representation still will not be able to get a certified
bargaining agent unless they are able to convince more than 50 percent of
their colleagues to sign up for it. In an atmosphere where employer opposition
to unionism continues to be regarded as legitimate, reaching this level of
support will be very difficult. Organizing may be marginally easier,
but, if the Canadian experience is indicative, it will not make a major difference
in the overall outcome.
Over and above these technical
reasons for skepticism about the EFCA, the fundamental logic of the Act is
flawed. Opponents of collective representation have developed and refined
a theory of the union-free workplace that is pervasive in the media, among
the general public, and, in my experience, even in the minds of many labor
friendly academics and practitioners (Adams 2006b). The Free Choice Act plays
right into the hands of the theory's proselytizers. The fundamental tenets
of union-free theory are the following:
1.
Individual bargaining is the natural alternative to collective bargaining.
2.
Unions are "outside organizations" to whom employees turn when they are unhappy
with the outcome of their individual efforts.
3.
If employees are satisfied with the individual employment relationship
they have no need for a union.
4.
If unorganized enterprises institute policies and practices that are acceptable,
the employees will be satisfied, and being satisfied will have
no need for a union.
5.
Thus, unionization is a bad thing—the outcome of management failure.
6.
The absence of unionization is an explicit indicator of good management.
7.
Thus, it is a duty of managers of unorganized enterprises to demonstrate good
practice by avoiding unionization.
8.
To become unionized is to fail, to be disgraced.
9.
The proper role of government is to act as a neutral referee in the contest
between unions and unorganized employers for the loyalty and support of the
employees. This role lends support to the propositions that unions are "outside
organizations," that individual employment relations are the natural norm,
and that unionization is the outcome of a failed attempt by management to
create social harmony in the workplace.
By implying that the choice between individual bargaining and collective
bargaining is legitimate, the Employee Free Choice Act gives credence to this
philosophy since each of its tenets follow from the initial statement.
Although many human resource and labor relations professionals
are willing to grant the legitimacy of individual bargaining, it is clearly
not an effective alternative to collective representation. Every day there
are reports in the press about companies announcing major layoffs, changes
to their pension plans, the imposition of two-tier wage systems, and movement
from full-timers to more part-timers and contract workers. Individuals cannot
bargain about such aspects of employment. To have any influence over
them they need a collective representative. That is a major reason why the
right of all employees to collectively negotiate their terms and conditions
of work has been heralded internationally as a fundamental human right. In
1998 the United States joined with nearly all of the nations of the world
in affirming the human rights nature of collective bargaining (Bellace
2001).
The agency that is recognized
globally as the authoritative source regarding labor norms and principles
is the International Labor Organization (ILO). That organization, of which
the United States is a prominent member, promotes a labor relations vision
that is the polar opposite of union-free philosophy. Its principle concept
is that of social partnership, and the main tenets of the paradigm it promotes
for all of the world's nations are the following (Adams 2006b):
1.
Collective bargaining is an inherently good thing and the preferred process
for making democracy effective in the economic sphere of society.
2.
Thus, it should be freely accepted as the norm by employees, employers, and
society as a whole.
3.
It is no disgrace to becoming unionized; indeed, the absence of unionization
is an indicator of a potentially problematic, antisocial situation.
4.
The proper role of government is encouragement of collective bargaining, not
neutrality.
5.
While majoritarian certification is an acceptable policy, employees in any
uncertified unit have a right to organize themselves and seek recognition
in order to negotiate issues such as layoffs, pension change, and work organization
change, and employers have a responsibility to recognize and negotiate in
good faith with them even if the employee organization is composed of only
a minority of the relevant employees and has not been state certified.1
The United States, as a member of the ILO, has endorsed its basic
philosophy and principles. ILO membership may be interpreted as acceptance
of a responsibility to put into place a labor relations system that is consistent
with that organization's basic ethos. Should that be accomplished and the
tenets of social partnership theory be accepted as the norm in the United
States, industrial relations would change dramatically. Employer opposition
to unionization would be no more legitimate than opposition to diversity or
condoning child labor. The only valid employee choice would be between certified
representation by an exclusive agent and representation by less formal means.
Although individual employment relations might still be appropriate for employees
in very small enterprises, or for high-level managers, the absence of collective
representation would automatically be suspect and in need of explanation.
In short, the main obstacle to union advancement in the United States is not
the law but rather the prevalence of an ideology that demonizes collective
representation as a social, economic, and administrative negative.
The promoters of the Employee
Free Choice Act would seem to believe that the current legislative framework
in the United States is sound but in need of certain revisions in order to
become fully effective. Canadian experience does not support that theory.
The principle obstacle to the advancement of collective bargaining in North
America is the existence of a paradigm that accepts the choice of subservience
to management control as legitimate. So long as that paradigm continues to
dominate, the decline of the American labor movement is likely to continue.
Unfortunately, the Employee Free Choice Act affirms rather than denies
the paradigm's legitimacy, thus enhancing its credibility and power to shape
behavior.
