Senate Battle Over Unionization Legislation Begins

March 28, 2007

A bill that would allow workers to form a union by signing cards authorizing the formation of a bargaining unit faces an uphill fight in the Senate, according to its champion on that side of Capitol Hill.

“It’s going to be a battle, no question about it,” Sen. Edward Kennedy, D-Massachusetts and chairman of the Senate Health Education Labor and Pensions Committee, told reporters following a hearing on the bill Tuesday, March 27.

The session was the first Senate action regarding the so-called card-check legislation, called the Employer Free Choice Act. The House approved the measure March 1 in a 241-185 vote. Thirteen Republicans joined 228 Democrats in supporting the measure, while two Democrats and all other Republicans opposed it.

Senate Minority Leader Mitch McConnell has signaled that the GOP is likely to filibuster the bill when it comes to the Senate floor. Legislation must receive 60 votes in order to end limitless debate under Senate rules. President Bush has said he will veto the measure.

Kennedy says he does not know how many of his colleagues back the bill. “I haven’t counted the votes on it,” he says.

But Kennedy indicated he will forge ahead and schedule a committee vote on the bill. He didn’t give a time frame.

“It won’t be long, though,” he says.

The measure is in for a tussle in the committee. A political fissure was apparent during the hearing, which lasted more than two hours.

Kennedy argued that giving workers greater freedom to form a union would result in their having more leverage to claim the fruits of productivity gains in their wages.

Republicans were united in opposing the bill, saying it would deny workers the right to a private ballot in the workplace. They also assert that the measure is designed to bolster union membership, which stands at about 12 percent of the U.S. workforce.

Under current law, a company can accept a card-check election or force a secret ballot vote supervised by the National Labor Relations Board. Supporters say the secret ballot is still an option under the bill.

In addition, the measure would allow a company or a union to refer a first contract dispute to mediation after 90 days and to binding arbitration after 30 days of mediation. It would impose fines up to $20,000 on companies that discriminate against workers during organizing campaigns and force them to pay treble back wages.

One of the witnesses alleged that he was a victim of a vindictive employer. Errol Hohrein worked as a boilermaker at Front Range Energy during the past year. Hohrein says he was fired for supporting a union and that he and others were intimidated by the company during the union campaign.

“They took [workers] into back rooms and browbeat them,” Hohrein says. “They had no respect for the law. They simply violated my rights and the rights of the people in that plant to have a legitimate union campaign.”

Nonetheless, the union prevailed, a point that a Republican senator noted.

“You had an adversarial situation and the vote went union,” said Sen. Johnny Isakson, R-Georgia.

Not only do unions often win, but another witness asserted that current rules allow the National Labor Relations Board to monitor an election.

That situation would change if the card-check measure became law because unions would secretly pressure workers to sign up, says Peter Hurtgen, a partner at Morgan Lewis in Irvine, California.

“There is no way the board or any other quasi-judicial agencies will be able to police the vigorous campaigns that go on,” Hurtgen says. “It will simply create more an opportunity for lawlessness than for sound labor policy.”

But Cynthia Estlund, a professor at the New York University School of Law, says workers are subject to “much less pressure from unions than from employers, even in card-check” elections.

She maintains that employers strengthen their upper hand by hiring consultants to wage sophisticated anti-union campaigns.

“It’s relentless,” she says.

Other supporters of the bill focused on economic arguments. They asserted that unions help to secure higher wages and better benefits for workers and ensure their share of productivity gains.

“It’s important to look at the benefits to our economy of increasing the number of unionized workers in the private sector,” says Sen. Hillary Rodham Clinton, D-New York.

But Isakson says there are “extraneous factors” that disproportionately affect wages. Technological advances have bolstered productivity but displaced workers.

The arguments will continue for weeks as the Senate grapples with the bill.

“I think we had a lot of good answers today,” Kennedy says. “A strong case was made for it. So, we’re going to continue the battle.”

—Mark Schoeff Jr.