Hunton Employment & Labor Perspectives

Late last week the Bureau of Labor Statistics released its numbers concerning the levels of union membership in 2009. As in past years, the number of union members in the private sector has declined, now down to 7.2% from 7.6% in 2008. In December 2009, the NLRB's General Counsel released the Agency's numbers regarding the number of initial union representation elections in FY 2009. Once again, the number of elections initiated by unions has declined, this time by a whopping 19% in just one year.

We know from NLRB numbers over the last ten years that union win rates in these elections have increased from just over 50% in the first half of the decade to about 55% or more in each of the years of the second half.  So, let's see what those numbers tell us when compared to the rhetoric over EFCA.  

Union membership continues to decline and that's why unions say that EFCA or something like it should be made law. In 2009, as in previous years, unions initiated far fewer elections even though statistics show they win more than half of the ones in which they participate.  But absent passage of EFCA, unions can't win new members if they don't organize and hold elections.  Their strategy for passage of the EFCA free ride appears to amount to a self fulfilling prophecy.  That is, if unions refuse to engage in the election process, their numbers will continue to dwindle, which to some creates a problem in need of EFCA as the solution.  And the Obama administration seems to be making the same argument.  On January 22nd Hilda Solis, Secretary of Labor, said the membership numbers make "clear why the Administration supports the Employee Free Choice Act. "     

The Secretary's adherence to this stance in the face of statistics to the contrary is grounded in her sincere belief that employees are better off with a union.  However, with  a 55% win rate, why don't unions use the election mechanism available to them? The  unions say the deck is stacked against them and they can't win. The numbers reported for the last decade or more refute that claim. They also say that top down, corporate campaigns work better. The continuing drop in membership casts doubt on that assumption as well. But one certainly can believe that, if an employer can be forced  into a card check and neutrality agreement through a corporate campaign  publicly attacking its corporate image, the union win rate should vault into the 80 to 90% range.  EFCA in either its current or modified form will accomplish nearly the same thing.

As has been said from the outset, this proposition is not about better workplace democracy… it is about pre-ordaining union victory irrespective of free choice.