(Note: Part one of six.)

Every January, the federal Bureau of Labor Statistics publishes updated figures on union membership, an event that must be the source of increasing anxiety among union leaders. Over the past 20 years, the percentage of union members among working Americans has never increased by any significant amount in the BLS figures; sometimes the unions have managed to hold their ground, more often than not, they have lost.

This inexorable decline in membership has led the union movement to seek changes to labor law, changes that have one thing in common: They make it easier for unions to win and hold on to the legal right to represent workers. Whether these changes would improve the lot of working Americans is another question. Union officials, understandably, assert that union membership is almost always a good deal, and that the failure of workers to choose to unionize can only be explained by flaws in labor law or by employer hostility to unions, or both. The possibility that the union movement’s decline is due to union practices, and that the best union reforms are internal not external, needs to be fully explored by unions or lawmakers.

It’s a long train, and Michigan is at the back end, but there’s no question that the train is leaving union station, and Michigan is along for the ride. The BLS reports that between 1999 and 2006 the nation added 9.3 million jobs, but unions lost more than 1.1 million members. The losses were especially severe outside of government; in 1999 union members made up 9.5 percent of the private-sector workforce, but in 2006 that figure had dropped to 7.4 percent.

Unions remain more potent in Michigan: Overall, 19.6 percent of Michigan workers are union members. Still, back in 1999 that figure was 21.5 percent. Between 1999 and 2006 Michigan unions lost more than 120,000 members.

Federal labor law is based on the idea that a labor union should not be "recognized" as the representative of workers unless it has the support of a majority of those workers. The process of recognizing a union typically begins with the union collecting authorization cards signed by workers. When the union has a sufficient number of signatures from the workers in a bargaining unit, it can petition for recognition. Sometimes the employer accepts the union’s claim based on the signed cards, but the employer may also call for a government-supervised secret-ballot election.

Prior to the election, the employer is allowed to make the case to workers for not having a union, and in the process the company may hold employee meetings on company time on the condition that employees are paid for the time they spend in the meeting. During this period, employers may not threaten, interrogate or make promises to workers in exchange for their supporting management. If a majority of workers vote to bring in a union, that union is recognized, and the employer must negotiate in good faith.

Union officials often argue that their loss of members is due to the machinations of employers who exploit loopholes in the nation’s labor law to fire union supporters, threaten plant closings and force workers to attend anti-union meetings. But union leaders have not tried to close off these supposed loopholes. Rather, they have taken two other routes.

First, they have tried to abolish the secret-ballot election at which workers express their preferences in private and make the final decision to unionize or not. Labor leaders want to replace this secret-ballot union election with a "card check" process in which an employer must recognize a union immediately if the union collects authorization cards from a majority of workers.

The problem is that not all workers who sign authorization cards are necessarily union supporters. Workers often sign cards because they sense peer pressure or want to avoid harassment from union organizers. Unions can and have resorted to intimidation to collect signatures, a tactic that is not available – to either side – in a secret-ballot vote. The main effect of card check is likely to be that workers who are indifferent or even hostile to union representation will be seen as union supporters because they were uncomfortable refusing to sign the card in public. This tendency of card check to create "false positives" will lead to unions being recognized in places where they do not have the support of a majority of workers.

The union movement’s second goal is to have an arbitrator automatically determine wages and other terms of employment when unions and management cannot reach an agreement on the critical first contract after a union is recognized. On the surface, binding arbitration seems like a reasonable way to avoid strikes, but it’s rarely used in the private sector to resolve labor disputes. Michigan does use binding arbitration when state or local governments cannot reach an agreement with unions representing police officers and firefighters, but it is a cumbersome process and prone to long delays. The final decision on wages and working conditions is made by an arbitrator who suffers none of the consequences if his decision leads to layoffs or bankruptcy. Finally, workers themselves cannot reject an arbitrator’s ruling no matter how unfair they believe it to be.

The overall effect of these two proposals would be to steer workers into unions even when they are unenthusiastic about union representation. At the same time, the unions themselves would become less accountable to the workers they represent.

And all this at a time when it is becoming less and less obvious that unions give workers any advantages. Recently, the Detroit Free Press reported that workers at Toyota’s nonunion assembly plant in Georgetown, Ky., had better compensation than the typical UAW member working for one of the Big Three. In the auto industry, so critical to Michigan, the union advantage has been whittled to virtually nil, and workers are smart enough to see that. The union movement has yet to come to terms with the effect that this sort of development has on organizing.

Over the next few weeks, the Mackinac Center for Public Policy will be publishing essays that take a closer look at the drive for labor law "reform." We will examine what union advocates are calling for and what the likely effects will be. Finally, we will argue that the union movement doesn’t need new legal advantages as much as it needs "tough love." The best way to strengthen unions is to make them more accountable to their members.

#####

Paul Kersey is senior labor policy analyst at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.