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Elaine Bernard Pt.3: The biggest barrier to unionization is the law

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome back to The Real News Network. We’re talking to Elaine Bernard about trade unions, the economic crisis, and the United States. Thanks for joining us. So we left off in the last segment talking about the Employee Free Choice Act, which is going to be—it’s working its way through Congress. President Obama said he was going to sign off on it. On the other hand, we haven’t heard much about it from President Obama or from the leadership of the Democratic Party since they took power. But the trade unions find this piece of legislation of extreme importance. SEIU and a lot of other unions are putting a lot of money into an advertising campaign. And, in fact, here’s a little piece of one of their commercials.


VOICEOVER: It’s the Wall Street way of doing business. Getting rich is everything. Reward yourself for failure. Employees don’t matter. Exploiting them is acceptable. Don’t let workers get ahead. That’s why they think they deserve bailouts and bonuses for bringing our economy down, and then turn around and try to keep workers from joining unions to earn better wages and benefits. Don’t let them get away with it. Tell Congress to pass the Employee Free Choice Act now. It’s time the economy worked for everyone again.


JAY: So, Elaine, what is this legislation about? Why is it needed in the eyes of the trade unions? And do you think it will make much of a difference?

ELAINE BERNARD, TRADE UNION PROGRAM, HARVARD LAW SCHOOL: I think that a big part of the de-unionization in the United States is about labor law. Our labor law just hasn’t kept up with changes in the economy. And the numbers I showed you, the difference between the public sector and the private sector unionization rate—private sector 7.6 percent, public sector 36 percent—is about labor law. What’s different? One is in many states in the public sector, the workers get to choose whether or not to have a vote as a way of demonstrating majority union support or whether to do card-check authorizations.

JAY: So what is card-check?

BERNARD: It’s basically just members sign an authorization card. You know? I mean, you know, you get your driver’s—.

JAY: And if 51 percent of people sign the card, it’ll prove that you—then you get a union.

BERNARD: Then the employer—. Yeah. You’ve proven that a majority have joined and wish to collectively bargain. So the Employee Free Choice Act will allow employees to decide whether—.

JAY: Well, the American Chamber of Commerce has waged a big campaign saying, essentially, that this act will take away people’s right to choose. They say this, the secret ballot process that now exists in factories, is much fairer because it’s a secret ballot, and this takes it away. What do you make of that argument?

BERNARD: Yeah, I don’t buy it. The employer gets to choose. The employer basically decides that it has to be a ballot. With the Employee Free Choice Act, the workers will be able to decide. If a majority of them sign a union authorization card, then they get recognition. If they don’t want that, then they simply have to, a majority, not sign cards.

JAY: If I understand it correctly, workers can decide whether they want a secret ballot vote or not.


JAY: But what’s wrong with a secret ballot vote? Why are unions saying that this isn’t fair?

BERNARD: Well, because the union elections, authorization elections that currently take place on the National Labor Relations Board, you know, can take, you know, 45, 60 days. We would never certify the type of election that takes place around unionization—we would never certify it in any other environment. You know, only one side gets to speak to the workers, that is, the employer.

JAY: What does that mean?

BERNARD: Well, it means that, you know, the union does not have access to the workforce.

JAY: So the employer can hold meetings on the factory floor; the union can’t.

BERNARD: Right. Well, and, in fact, the union does not have access to the workforce, period. You know, there’s all sorts of court decisions that basically say the union can’t, you know, enter the workplace, they can’t meet with the employees, they, you know, can’t even stand in the parking lot and hand out leaflets. You know. Also, the process is so acrimonious, so drawn out, that it really does not reflect the people’s opinion. Let me give you an example. In the United States, we’ve had polls for many years, and the question is always asked in more or less the same way: if an election of non-union workers, if an election were held tomorrow to decide whether your workplace would have a union, would you vote “yes” or “no”? And very interesting: over the last few years, a majority, 53 percent, have now said they would vote “yes”. That reflects a growing desire for unionization, with huge barriers right now, which is the law. It’s very difficult to unionize in America.

JAY: Take the other side of that, a 53 percent “yes”. What about all the workers that are saying no? It would seem a no-brainer if you compare unionized wages to non-unionized wages and benefits and such. Unionized workers are in a much better off to a far better off position than non-unionized workers. Why would over—you know, what is it?—43 percent of workers say they would say no?

BERNARD: It’s now down to about 25, 26 percent who would say “no” in these polls, because there’s a lot who say “I don’t know,” which is, you know, why, you know, generally, any union organizing campaign is a discussion.

JAY: And how much has this got to do with the fear factor? And is there any polling on that?

BERNARD: Tremendous fear factor. I would say the vast majority of people know, if they try to organize, that the employer will do everything within their power to prevent it, which, you know, is not the law. The law is that, you know, workers should have the right to collectively bargain.

JAY: Well, in the next segment of our interview, let’s discuss why are employers fighting so vigorously against unionization and why is the situation so different in the US than in Canada and Europe. Please join us for the next segment of our interview with Elaine Bernard.


Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.

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Elaine Bernard is the executive director of the Labor and Worklife Program at Harvard Law School. Bernard's writings often focus on workers in the telecommunications industry, and the role technological change plays in altering work. In the last several years, she has publicly discussed how advancing technology will change how labor unions function (especially in regard to member-to-member and union-member communication and organizing).