Steven J. Law is chief legal officer and general counsel for the U.S. Chamber of Commerce. Law previously served as deputy secretary and chief of staff at the U.S. Department of Labor. He received his law degree from Columbia Law School and a bachelor’s degree in music from the University of California, Davis. Law is a member of the bars of the U.S. Supreme Court, the state of New York, and the District of Columbia. He lives with his wife and two children in McLean, Va.

Publisher’s Note: As chair of the Council of State Chambers, I invited Steven J. Law, chief legal officer and general counsel for the U.S. Chamber of Commerce, to address union organizing legislation. Since that presentation the U.S. Supreme Court, in a 7-2 decision, struck down a California law restricting an employer’s right to have mandatory meetings to tell their side of the issue during union organizing campaigns. Gov. Chris Gregoire tabled a legislative proposal similar to the California law at the start of last legislative session awaiting the outcome of the California decision. In 2009, we expect union organizing legislation to return at both the state and federal legislative levels. —Don C. Brunell

Q: Why the renewed push for union organizing?

A: In 1953, union membership was 32.5 percent of the U.S. workforce. Since then, it has steadily declined. Today, unions represent 12.1 percent of America’s workers, which is a slight increase from 2006. Unions still have 15.7 million members nationwide, so they are a political force.

Q: What is at stake at the congressional level?

A: Union leaders want to replace the secret ballot in the workplace with a “card check” system. Today, union organizers can come on to a job site and get enough signatures to force an election. Employers can bring their people together and explain their side of the story and then workers can decide for themselves if they want to form a union. The process is important because how people vote is secret, just as it is when we vote for candidates for public office. They would replace the secret ballot with a card check process. The legislation is called the Employee Free Choice Act.

Q: How would card check work?

A: EFCA would amend the National Labor Relations Act by giving unions the right to achieve recognition solely through the card check process, thus permitting labor unions to avoid secret ballot elections. Under the card check approach, union organizers collect signatures of employees on authorization cards and present them as representing the true intent of the workers. However, as the 7th Circuit Court of Appeals observed, “Workers sometimes sign union authorization cards not because they intend to vote for the union in the election, but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back.” Therefore, the card check process exposes employees to abuse, threats, and intimidation all in the name of the union accumulating the required number of signatures. EFCA would elevate this inferior card check process to the principle method of recognizing a union, thereby eliminating the employees’ long-standing right to secret ballot elections.

Q: Under card check, what happens when the organizers present the required number of authorization cards to the employer?

A: EFCA also contains a provision to impose mandatory interest arbitration of first contracts. Interest arbitration would set all the terms of the initial contract between an employer and a union, including wages and benefits, but also other provisions typically in collective bargaining agreements, such as outsourcing and union security clauses. While sometimes used in the public sector, binding interest arbitration is completely unprecedented in the private sector.

Q: What are the penalties for employer card check violations?

AEFCA includes provisions to increase penalties on employers for certain violations of the NLRA. The fact that these provisions apply only to employer violations and not to union violations illustrates the bias inherent in EFCA. Union coercion is no less contemptible than employer coercion.

Q: Is there a groundswell of public support for new union organizing?

A: McLaughlin and Associate found that almost 9 in 10 voters agree that workers should continue to have the right to a federally supervised secret ballot election when deciding whether or not to organize a union. Even union members themselves recognize that secret ballot elections are the fairest way to choose whether to form a union. In a poll by Zogby International, union members overwhelmingly (84 percent to 11 percent) indicated that employees should have the right to specifically vote on whether to join a union.

Q: Then why the push?

A: AFL-CIO President John J. Sweeney says this is the top labor issue next year. Labor is backing U.S. Senate candidates in 10 states where they feel they have an opportunity to increase the Democratic majority to 60. They need 60 votes for cloture to prevent a filibuster of the legislation. Union leaders believe they have an opportunity for a “trifecta;” that is, electing Democratic majorities in the U.S. House and Senate and Barack Obama as president.

Q: How much are unions spending to get a “filibuster-proof” Senate?

A: AFL-CIO affiliates will spend $200 million and SEIU plans to spend $75 million.

Q: Will union organizing legislation be an issue in the state legislatures with the recent U.S. Supreme Court decision in Chamber of Commerce v. Brown?

A: California tried to impose a rule that prohibits employers receiving state funds from using the funds “to assist, promote, or deter union organizing” as Justice John Paul Stevens wrote. I understand your governor tabled a similar proposal in Washington until the Supreme Court decided. Washington’s proposal was broader than the invalid California law. It doesn’t hinge on the receipt or use of state funds by an employer. It bluntly prohibits any employer speech about union matters if it can be viewed as a “required” communication — in a staff meeting, perhaps in a company-wide e-mail, and so on. It is enforced, like California’s statute, by a strong litigation deterrent attempting to make the state’s judicial branch the ultimate referee of permissible workplace speech.

Q: What is the Chamber’s recommended course of action?

A: Get involved in the elections and make sure there is no filibuster-proof U.S. Senate and get as many calls, letters and e-mails to your governors, senators and congressmen telling them to oppose this legislation.