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Johnda Bentley

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Americans Love Democracy, Except in the Workplace

Posted: 09/04/11 08:03 PM ET

Unionization is not often described as democracy in the workplace, but that is exactly what it is. Under federal law, private-sector employees may elect representatives to bargain with their employer over their terms of employment. Currently, 93.1% of the private sector work without any elected representatives in their workplaces. This Labor Day, it is worth pausing to reflect on the reasons why.

One of the obvious reasons for the low numbers of unionized workers in the private sector is the threat of job loss from employers. While terminating an employee for supporting a union is unlawful, breaking the law in this manner is unfortunately cost effective. An employer will be liable for an employee's back pay; but in exchange, the fear caused by firing one employee who supports the union is often enough to defeat organizing efforts. Unless the National Labor Relations Act is amended to allow steeper penalties against law-breaking employers, fear of job loss will remain a major roadblock to workplace democracy in the private sector.

Another major reason employees do not unionize is their belief that existing laws provide sufficient workplace protections. However, employees are shocked to learn that there is no federal law limiting the hours an employer can force someone to work without breaks. Except for those falling under Department of Transportation regulations, employers can order employees to work overtime without limit. Few states add any legal protections. Even in the healthcare industry, notorious for mistakes caused by fatigued employees, the federal government leaves it to the private sector to limit work hours.

And while most employees nominally know they are "employees at will," few realize this permits termination for reasons that are blatantly unfair. For example, if a store has merchandise that is missing, the boss may assume at least one employee is guilty and fire all the employees. Employees at will have no right to an investigation in the workplace. Likewise, a boss can fire an employee simply to hire her son. No federal laws prohibit nepotism in the private sector. Employees at will can even be fired for missing work when they are truly sick if the illness is not a "serious health condition" as defined by the Family Medical Leave Act.

If employees understood how few legal protections they have in the workplace, they MIGHT be more likely to want a union. Too often, people lose jobs in unjust situations before realizing the rights they do not have.

To be sure, many will say that we cannot afford unions and remain competitive in the global marketplace. Unions were effectively blamed in the 1980s and 1990s for the loss of manufacturing. However, putting the union jobs aside, the U.S. was destined to lose much of manufacturing to the low wages of Chinese workers based on the minimum wage alone.

Now that we are primarily a service-based economy, the gap between the rich and poor continues to widen as unions are shrinking. If employees demand more wages, employers are free to shift labor costs internally by reducing bonuses and wages paid to management. This would be a wise option before raising the price of their product or service.

Others will protest that unions are inefficient and corrupt. But we have not abandoned democracy in our government despite an equal susceptibility to corruption and inefficiency. When a politician is caught in a scandal, we may vote for another party in the next election. We do not throw up our hands and say, "This is too much trouble. No more elections!" Yet we have done that in our workplaces.

To the delight of companies everywhere, most of us leave our livelihoods to the mercy and whims of the employer alone. However, that may soon change. Come November 14, 2011, the National Labor Relations Board will require employer to post a notice explaining their rights under the National Labor Relations Act, including their right to democracy in the workplace. While the public sector's labor rights are being chipped away, the private sector may notice their own rights.