The Employee Free Choice Act

Probably the number one priority of unions in Congress right now is the Employee Free Choice Act. The basic concept of the act is that if a majority of workers in a workplace agree in writing to form a union, that no further union election is required. Unions want this to prevent union organizers from being fired and to prevent workers from being intimidated between the initial petition from union organizers and the vote on unionization. I support the EFCA.

The fact that unions are pushing so hard for this, and that anti-union interests oppose it so strongly, speaks to the fact that the law would make some difference. And, there is no doubt that unions are not in the best of times. Private sector unionization rates in the United States are at levels lower than they were in the 1920s before the Great Depression or the existence of any federal legal protection for unions. (Public sector unionization, in contrast, is healthy, in part because public workers are protected from arbitrary firings and mostly have jobs that are hard to relocate.)

This said, I can't help but to question if this fairly subtle change in the rules for organization new unions will make much of a big picture difference as supporters hope and opponents fear.

In this fight, just as in Colorado's recent batch of ballot issue fights over labor-management rights, I fear that titanic political battles are being fought over scorched earth. Many details of private sector union-management relations are not very important for good or ill in Colorado's economy in early 2009, even though they are much more important in some states (like Michigan and Nevada). Relatively few private sector workplaces in Colorado are unionized or likely to be unionized in the near future. Management in many unionized workplaces either markets the fact that the unionized to their customers, or is resigned to that fact that they have a union shop, even if they aren't happen with it.

One of the biggest reasons for the drop in private sector unionization has been the demise of the American manufacturing industry, which has traditionally been among the most heavily unionized industries in the American economy. While public sector unions and the SEIU seem to be growing, the AFL-CIO is full of private sector unions that have added very few new locals for the past several decades. Sometimes this has been a mission accomplished issue. Until fairly recently, when foreign automakers opened plants in the United States, the automobile industry was almost 100% unionized.

But, unionization alone has also not been enough. In the key automotive industry component of the manufacturing industry, the problem is not that the unions have not been able to secure good deals for workers, but that the companies have not been successful enough to honor those deals. More generally, in any industry that produces goods, rather than inherently locally provided services, free trade rules make it fairly easy to shut down domestic production and offshore jobs. Thus, union workers must compete directly with lower wage foreign workers. This has particular bite for less skilled workers, who are more easily replaced by relatively low paid foreign workers than relatively scarce highly skilled workers.

Another big problem for union organizers has been that many of the most important gains secured by the early phases of the union movement have been institutionalized into labor laws applicable to all employees, with or without a union now. When the law mandates time and a half for overtime, worker's compensation, and certain safety guarantees, you don't have to negotiate those terms.

There are also at least two other big legal barriers to unionization in the United States.

First, in the United States, unions are mostly organized by firm, rather than industry. This makes it hard to organize industries which are predominantly made up of small firms (like construction and many service industry fields). The only significant national industry based unions of which I am aware are in acting and kindred professions, although a few areas of the country have multi-employer unionization units for construction and seaport related trades.

A second key and related problem is that striking workers may be permanently replaced by non-union members. This is fairly easy for small employers to do, making a union's most potent weapon less effective. But, increasingly, even this appears to be within the realm of possibility for all but the very largest unionized employers.

It is not at all obvious to me whether the economic fundamentals, or the legal environment, are more important to the current dire state of private sector unionization. Historically, unions became economically important before legal protections for them arose. The context of American deindustrialization over the past few decades at the same time that private sector unionization percentages have declined suggests, but does not unequivocally establish, that the economic dog is driving the legal tail now as well.

If the explanation for the weaking role of private sector unions is primarily economic, this does not mean that all hope is lost for the American worker, but it does suggest a different or complementary set of solutions (designed to add to the value created by private sector workers in the global marketplace), to legislative remedies like the EFCA.