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Virginia and the Employee Free Choice Act

The Employee Free Choice Act, now pending in Congress, has caused near panic among employer groups. Senator John McCain has called it a threat to small business and democracy. Proponents claim that it merely levels the playing field between employees and employers in campaigns to organize a workforce. President-elect Obama says it helps working Americans exercise their right to organize under a fair and free process.


Passions run high about the Act, and it is difficult to find an objective analysis of its expected effects. Because of Virginia’s particular labor history and the many factors that affect the organization of workplaces here, evidence indicates that the Act will not have much effect on Virginia’s small and medium sized employers and their employees.


What is the Employee Free Choice Act?


The Act is an amendment to existing labor relations law that, among other things, requires an employer to recognize a bargaining representative, usually a union, for its employees without a secret ballot election when more than 50 percent of the employees sign a card requesting the employer to recognize the bargaining representative.
How is this different than existing law?


In 1949 the National Labor Relations Board determined that an employer must recognize a bargaining representative who presents cards signed by a majority of the workforce unless the employer has a good faith doubt as to the actual majority. This determination, called the Joy Silk Doctrine, governed union organization until 1966. At that time the Board changed this doctrine to make it much easier for employers to demand a secret ballot election, even after being presented with authorization cards signed by a majority of workers. The Act effectively returns the law to its state under the Joy Silk Doctrine. Under the Act, an employer who is presented with cards signed by a majority of employees must show fraud or certain misbehavior on the part of the employees or organizer in order to justify an election.


What effect will the Act have on Virginians?


Many factors affect workforce organization and there is little reason to believe that the Act will result in large increases in union membership in Virginia, especially among small and medium sized employers and their employees.


Over the last 10 years unions have won more than 60 percent of the resolved union elections nationally, yet union membership, as a percent of the nation’s workforce, has declined during this period. Unions represented 28.6 percent of our country’s workforce in 1960 and by 2007 that number had dropped to 12.1 percent overall and only 7.5 percent of the private industry workforce. Since unions have won a majority of the union elections in the last decade, it is difficult to argue that the decline in membership is attributable solely to the method of election. Of course, union membership figures in Virginia have been much lower than national figures. In 2007, only 3.7 percent of wage and salary workers in Virginia belonged to a union, a decline from 9.3 percent in 1992.


These figures strongly suggest that factors other than a secret ballot requirement have adversely effected union organization. Globalization of labor markets, transfer of jobs to countries without labor protections, mobility of the U.S. workforce, increased education and independence of the workforce, explosive growth of small business, especially in the technical fields, decreased influence of large scale employers, general satisfaction with wage rates and workplace conditions and employers’ efforts to improve relations with employees have all made it much more difficult for unions to organize workplaces. These factors will not be affected by the new Act.


Employers that have an adverse relationship with their employees and have a predominantly low-wage, non-transient workforce and provide a work environment that is generally unpleasant to work in will remain vulnerable to organization. Regardless of the means of election, successful union campaigns are born in workforces that have little communication with their employer, feel out of touch with their employer, work in physically and mentally oppressive work environments and feel that their work is substantially under-compensated and under-appreciated by the employer. In addition, the current economic downturn has created new sense of job insecurity that may fuel organization.
If the Act does become law, unions’ initial campaigns will focus on Big Box stores like Wal-Mart and Target, where they have worked for years to build an organizational foundation and where they can generate large numbers of members quickly. After the Big Boxes, unions will target large employers in basic industries that are already partially unionized: including construction, hospitality, health care, retail, food production and manufacturing. Smaller businesses, for the most part, will not be early targets. States like Virginia with right-to-work laws and traditions of low union membership will be particularly low priority for organizing campaigns. Not only does the lack of union culture work against the unions, but also right-to-work laws prohibiting closed shops mean that unions are not guaranteed full membership even among successfully organized workforces.


This does not mean that the Act is without effect on VirginiaFor most small to medium sized Virginia employers, however, the Act and the controversy surrounding it is a reminder to stay in touch with employees, treat them as valued members of the business team, regularly show appreciation for the employees’ work and fairly compensate them. In the end, whether or not a Virginia workforce organizes is much more dependent on the relationship between the employer and the employees and a host of external factors, than on whether or not every workplace is entitled to a secret ballot election.


Photo on homepage used under a creative commons license from cursedthing.

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