Duane Hoffmann / msnbc.com
By Eve Tahmincioglu
msnbc.com contributor
updated 10/6/2008 6:24:43 PM ET 2008-10-06T22:24:43

Ann Andersen, a registered nurse in the emergency department of Naples Community Hospital in Florida, wanted a union so nurses at the facility could have more say about patient care.

She figured the nurses there were on their way to forming one after more than 50 percent of the workers signed union cards. Organizers filed a petition with the National Labor Relations Board on Aug. 30, 2007, to hold an election.

But more than a year later, the nurses still haven’t been able to hold a vote.

The Service Employees International Union, the group organizing the Naples nurses, filed a petition with the National Labor Relations Board earlier this year claiming unfair labor practices.

But the hospital denies that it has delayed organizing efforts.

“We don’t believe there is a need for outsiders to intervene in our institution," says spokeswoman Debbie Curry. “For months we’ve wished a vote was immediate to eliminate any distractions from our primary job, which is to care for patients.”

To Anderson, who says hospital officials are using delaying tactics and even intimidating nurses who want a union, the delay in the union vote “doesn’t make sense.”

“We followed the law. We did what we were supposed to do, but clearly the law doesn’t work.”

This sentiment is familiar among workers seeking to form unions. But legislation known as the Employee Free Choice Act could speed up the process by giving workers the option of bypassing a formal vote and imposing hefty fines on employers that violate employee rights.

Labor groups hail the legislation, co-sponsored by Sen. Edward Kennedy (D-Mass.) and Reps. George Miller (D-Calif.) and Peter King (R-N.Y.), as a boon for the struggling labor movement in the United States. Employer groups see it as a kiss of death for companies that want to remain union-free.

There’s a good chance the next president will either make or break the act, also known as EFCA or the card-check bill. Barack Obama has come out in support of the bill, while John McCain opposes it.

Regardless of how you feel about unions, it's a good idea to understand what’s at stake.

“It’s about leveling the playing field so workers can share in the prosperity,” says Anna Burger, the SEIU’s secretary-treasurer, who believes the act will open the door to more unions. “Unions are what created the middle class with the right for workers to organize.”

One management law firm, Pepper Hamilton, recently sent out an alert to employers written by attorney Jonathan Kane stating, “Because EFCA poses a significant threat to union-free employers, companies should mobilize to fight efforts making it the law of the land.”

No more secret ballot?
It’s been a long time since labor legislation has struck such fear in the nation’s employers and generated such glee among labor groups.

What exactly has everyone fired up?

Here are the two most significant components of the bill:

1. Bypassing the secret ballot. Under current labor laws, if 30 percent of employees sign cards asking to be represented by a union, the organizing group can file a petition to hold a secret ballot vote with the NLRB.

Under the new proposal, unions could bypass a vote if they’re able to get more than 50 percent of the union cards signed.

This is one of the major sticking points for business advocates.

The law as it stands now, says Todd Steenson, an attorney for Holland & Knight, protects employees and employers by allowing an “accurate determination of how employees feel through a secret ballot election.”

Employees sign union cards for a variety of reasons, adds Mike Asensio, an attorney for Baker Hostetler, a management labor and employment law firm. “They are badgered by people to sign, or it’s an emotional reaction to a circumstance and not knowing what they’re getting themselves into.”

When a union is trying to organize a workplace, he says, the organizers have unilateral discussions with workers to convince them to sign cards. Often, employers only learn an organizing effort is under way when a petition is filed to hold a vote.

“That’s when the employer tells the other side of the story,” he says, so it can convince workers not to vote for a union.

Employers also argue that eliminating the secret ballot takes away employees' privacy.

Jane Lauer Barker, an attorney with Pitta & Dreier who represents workers, says the argument for keeping secret ballot elections “is a red herring.”

When workers want to organize, she says, union representatives typically know who supports the union and who doesn’t. “It’s not as if these votes are a great unmasking of who the supporters are,” she adds.

Employers want to have time to hold captive audiences with employees and to hire a “union-busting firm to scare people," says SEIU's Burger. “Is that fair to workers?”

2. Speeding up the first contract. Even after an election is held and workers vote for union representation, the road to having a voice in the workplace has only just begun.

Negotiations for the first contract can drag on for months or even years, and sometimes a contract is never agreed upon at all.

Without a contract, union workers don’t get any guarantees about working conditions, wages, seniority or other issues.

The act would impose, for the first time, limits on how long negotiations for that first contract could go on.

Under the bill, if an agreement isn’t reached within 120 days, the issue is referred to an independent arbitrator for mediation. The arbitrator then rules on the contract, which would be imposed in the workplace for two years. 

This piece of the legislation is good news for labor advocates like Pitta & Dreier’s Lauer Barker.

“I’m involved in a case right now where workers in the hotel industry have been fighting for more than four years to get a first contract,” she explains. “In this case, the employer does not want to provide health care to all workers and wants workers who want healthcare to contribute a larger portion of their wages. Their wages are very low compared to the industry wage.”

She believes the law would curtail what she sees as employers who bargain in bad faith.

On the flip side, Holland & Knight’s Steenson says 120 days just isn’t enough time to hammer out something as complicated as a first union contract from scratch. Arbitrators are not experts in writing labor contracts, he adds. They’re experts in interpreting them.

The act would also beef up penalties employers face when they violate an employee’s organizing rights.

Under the bill, an employer could be fined up to $20,000 per violation for interfering with a worker’s rights during the organizing drive or during negotiations for that first contract. The bill also would increase the amount of money a worker receives in back pay if fired due to union efforts.

Under existing laws, an employer is merely required to reinstate an employee and/or to put an end to the harassment.

Clearly, the act will dramatically change existing labor laws if it passes.

Gary Chaison, author of “Unions in America” and a professor of industrial relations at Clark University’s Graduate School of Management in Worcester, Mass., believes labor law reforms are needed but is not sure throwing out the election process is the best idea. “But there is reason to clean it up,” he says, adding that even stiffer penalties should exist for employers who try to derail an employee’s right to organize.

The bill was passed by the House in 2007 but stalled in the Senate. However, those on both sides of the issue expect the act to be one of the first issues Congress addresses after a new president takes office.

“I think the next president, if Republican, will veto it, and if Democrat, will sign it,” Chaison says.

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