(Note: Part six of six.)
While supporters of the Employee Free Choice Act argue that the decline of labor unions is entirely due to an outdated labor law that hinders workers who seek to unionize, the bill’s critics are inclined to argue that the decline of labor unions is entirely the responsibility of union officials. It is true that union leaders have made some foolish decisions; they have made unrealistic economic demands of employers, and placed entirely too much emphasis on partisan politics. But it is not entirely fair to place all the blame on the unions. Congress has to accept some of the responsibility as well.
If the problem with labor law could be summed up in two words, they would be "compulsion" and "accountability." The National Labor Relations Act imposes a number of mandates on individual workers, and many of these serve to shield union officials from accountability to their own rank-and-file.
To get a sense of where the problems exist, consider an anti-union flier found in the appendix to "Undermining the Right to Organize: Employee Behavior During Union Representation Campaigns," a study written by two researchers affiliated with the University of Illinois at Chicago and sponsored by American Rights at Work. The flier, allegedly distributed by an employer fighting unionization, is titled "In the Union, Breaking Up is Hard to Do," and goes on to explain that, "There’s no such thing as trying out the union for a little while." The flier then explains some of the difficulties involved in removing a union before concluding that, "Once they’re in, they’re in." At no point do the authors of the report allege that the wording of the flier is false or deceptive.
It is possible to remove a union if a majority of workers want to do so, but as we showed in part five of this series, it’s an involved process, and most of the time workers are barred from even attempting it. As long as there’s a collective bargaining agreement in place, workers may be limited to submitting a petition to decertify a union during a one-month period every three years. For 35 out of 36 months, a union cannot be removed no matter how upset the workers may be at it. This makes union officials less accountable to those they represent.
That’s not the only way that the NLRA shields union officers from accountability. In states like Michigan, where there is no right-to-work protection, workers can be forced to either join the union and pay union membership dues or pay what is delicately referred to as an "agency fee," basically union non-membership dues. There have been legal decisions that limit the misuse of mandatory dues money; in theory non-membership dues can be limited to an amount covering the cost of representing workers in collective bargaining and grievances, but even if that worker quits the union, non-membership dues start off the same as membership dues, and while it’s possible to get them reduced doing so can be a serious hassle. The practical upshot is a union official does not need to worry much about whether any particular worker is happy with the union or not, the dues money flows either way.
Once a union contract is in place, individual workers are not allowed to opt out and make their own deal with their employers. This also weakens union accountability.
How? Well, in the autobiography that he wrote with the assistance of Mitch Albom, the legendary Michigan football Coach Bo Schembechler advised athletes to do the following to keep agents honest: once you’ve been drafted, go into the front office and sit down with the general manager on your own. Say as little as possible, sign nothing, but get their first offer on paper if you can. Then when you meet with agents who want to represent you, say "this much I can get on my own. You take your percentage out of what you can get me beyond this."
Being able to speak for yourself means, among other things, that you are in a better position to evaluate how good a job your representatives are doing. But unions don’t have to worry about individual workers meeting with the boss to find out what terms they might get without the union. Individuals are not allowed to negotiate on their own. That makes it harder for them to really know how well the union represents them, and makes unions less accountable to workers.
Workers may not know all the ins and outs of federal labor law, but there’s every reason to believe that they are aware that unions aren’t very responsive to their concerns. A Zogby poll of union members, sponsored by the Mackinac Center in 2004, showed that while 42 percent believed that their union dues were spent mainly on "helping workers get better pay, benefits, and working conditions," a lot of other workers saw their dues being spent on other things: 22 percent said their dues mainly went to "big salaries and perks to people in the union bureaucracy," 12 percent said "political parties or candidates" and another 24 percent either said "something else" or admitted they don’t know what the union did with the money.
Putting the question another way, 43 percent of union members believed their union did not spend enough of its funds on "efforts to secure better wages, benefits and working conditions." All of which points to one conclusion: There are a lot of union members who have doubts that their union is doing all it can to look out for them.
What the union movement needs most right now is tough love; meaningful labor law reform would make unions more accountable to their members. Right-to-work would allow individual workers to decide for themselves whether or not the union had earned their support. Strong paycheck protection legislation would at least give workers the freedom to opt out of union politics. Either would give workers more control over union finances.
Lowering the threshold for union decertification and holding a vote when 10 percent of covered workers sign a petition calling for the removal of a union would make decertification of a poor union less burdensome. Removing the contract bar to decertification will allow union opponents to call for the union’s removal whenever the union fails to represent workers effectively, instead of forcing them to wait as long as three years to take action. Either step would have the salutary effect of forcing union officers to pay close attention to the thoughts and feelings of those they represent.
Allowing individual workers to opt out of collective bargaining would be the ultimate union accountability measure. Workers could make their own judgments about the value of union representation based on the experiences of their coworkers who opted out. Allowing workers to make their own agreements would mean that unions would need to deliver real benefits to all of their members or see those members leave the collective bargaining process.
Any of these reforms would give workers more choices and at the same time force union officials to be more responsive to the concerns of those they represent – something that the Employee Free Choice Act fails to do. The union movement would be forced to adjust. Those adjustments would be difficult, but the end result would be a stronger union movement that is accountable to the men and women it represents, is more focused on providing effective representation in the workplace and more attractive to workers themselves.
Paul Kersey is senior labor policy analyst at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.