As much press as the "secret-ballot" gets, the problem is not with the election itself, IMO, but what occurs before and after the election. Unions generally win more elections than they lose--Unions won 1195 representation elections, or 55.7 percent in fiscal 2007 according to the NLRB's annual report.
Most of what follows is taken from a
Jan 2009 report by Human Rights Watch and I agree with most of it's conclusions.
US labor law currently permits a wide range of employer conduct that interferes with worker organizing. Enforcement delays are endemic, regularly denying aggrieved workers their right to an “effective remedy.” Sanctions for illegal conduct are too feeble to adequately discourage employer law breaking to deter violations.
Unfair union election rules allow employers to engage in one-sided, aggressive anti-union campaigning while denying union advocates a similar chance to respond and banning union organizers from the workplace or even from distributing information on company property. If confronted with clear evidence of employee support for a union, employers can force a formal election and manipulate the often lengthy pre-election period to pound their anti-union drumbeat and, in many cases, violate US labor laws, confident that any penalties will be minimal and long delayed.
Workers who overcome these obstacles and successfully form a union may still be unable to conclude a collective agreement, in large part because weak US labor law provisions fail to meaningfully punish illegal employer bad-faith negotiating or to adequately define good-faith bargaining requirements.
Penalties for breaching US labor law are so minor that employers often treat them as a cost of doing business—a small price to pay for defeating worker organizing efforts. Under US labor law, an employer faces no punitive penalties and few, if any, economic consequences for violating workers’ right to freedom of association. Instead, in most cases, a guilty employer must simply complete a two step “remediation process”: restore the status quo ante by recreating working conditions prior to the violations; and post a notice conspicuously in the workplace, such as on a lunchroom or kitchen bulletin board, promising to stop and not repeat the unlawful conduct.
Under this scheme, in addition to hanging the requisite notice, an employer who fires, demotes, or suspends a worker for organizing must merely reinstate that worker to her previous post and pay back wages, minus income earned in the interim. In many cases this ends up amounting to no more than a few thousand dollars, which many employers treat as a cost worth bearing, even repeatedly, to ensure that worker organizing campaigns do not succeed.
The Employee Free Choice Act would strengthen the penalties for unlawful anti-union conduct during organizing drives and first-contract negotiations. The Act would increase the amount due to workers fired, demoted, suspended, or otherwise discriminated against for their organizing activity, increasing the current “make-whole” remedy by requiring payment of “2 times that amount as liquidated damages.” The Act would also institute civil fines, payable to the US government, of up to $20,000 per violation for willful or repeated illegal conduct.
Under existing US law, if an employer is proven to have engaged in the common practice of illegal “surface bargaining”—negotiating with no desire to reach an agreement—the remedy required is more bargaining: the employer must post a notice promising to refrain from further bad-faith bargaining and is ordered back to the negotiation table where the cycle of bad-faith bargaining can repeat itself, lasting in some cases for years. Because there are no significant negative repercussions for illegal conduct in this scenario, there is little incentive for intransigent employers to comply with the law. As a result, many workers who face prolonged “surface bargaining” end up abandoning the negotiating process and their union, driven by their employers to surrender their right to freedom of association.
US employers also can evade even the minimal consequences of surface bargaining by exploiting a pernicious legal loophole. US labor law fails to establish concrete criteria for demonstrating the “present intention” and “sincere effort” to reach a collective agreement required during good-faith negotiations. Without such criteria, proving violations is extraordinarily difficult. Employers regularly take full advantage. Advised by expert counsel, employers often go through the motions of good-faith bargaining to create the appearance of lawful conduct while, in reality, they have no intention of ever concluding a contract.
The Employee Free Choice Act would not attempt to clarify US labor law’s amorphous definition of good-faith bargaining, but it would at least help prevent it from continuing to undermine workers’ rights. The Act would allow workers negotiating their first collective contract to seek mediation after 90 days if the negotiations are not progressing satisfactorily. If mediation failed after 30 days, the dispute would be referred to arbitration, leading to a binding contract. (The parties could mutually agree to extend the initial bargaining and subsequent mediation periods.)
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