ALBUQUERQUE — “It’s not a matter of if. It’s a matter of when.”

These are the words President-elect Barack Obama used in March 2007 about organized labor’s top priority for the next administration: the Employee Free Choice Act, which would make it much easier for workers to organize and gain first-time contracts with their employers.

A common refrain Obama used on the campaign trail was that it was “time we had a President who didn’t choke saying the word ‘union.’” Not only would he sign the bill, he promised, but he would work to make sure it got to his desk.

At the time, the House of Representatives had voted for the bill by a comfortable margin. Obama co-sponsored it in the Senate, but Democrats couldn’t muster the 60 votes necessary to override a Republican filibuster and move it to a vote in June of that year.

Since then, Obama has been elected president, and the Senate is just a hair’s breadth away from a 60-vote Democratic majority. So far the Democrats have 58 seats — including two independents who caucus with the party — with two still in the balance. If Democrats win two remaining seats in Georgia and Minnesota, the bill will have virtually assured prospects for passage.

Richard Trumka, secretary-treasurer of the AFL-CIO, was expressing confidence about the bill’s prospects even before the Democratic gains on Nov. 4.

“Without a doubt - the Senate Democrats will be there,” he said in an interview with the Independent in Albuquerque last month. “They understand the importance of this act, that unions are good for the country. The union worker makes 30 percent more than non-union — and if the union worker is an ethnic minority or a woman, that percentage goes up even higher. The distribution problem starts to go away. When workers have a union contract they’re vastly more likely to have health care and pensions.”

But it won’t be easy. Randel Johnson, vice president of labor policy at the U.S. Chamber of Commerce, characterized the coming battle as a “firestorm.”

Proponents of the act say it will help prevent employers from bullying workers to vote against joining unions, while opponents say it would allow union organizers to bully workers into unionizing.

So what’s it all about?

A labor union can be formed in a couple of ways. Either 51 percent of the workers in a “bargaining unit” can sign cards in favor of a union that the company then chooses to recognize.

Or workers can get at least 30 percent of the bargaining unit to sign cards, which they present to the National Labor Relations Board to request an election. The latter process is almost exclusively used because rarely do employers choose to recognize a union voluntarily.

The Employee Free Choice Act, though, would instruct the NLRB to automatically recognize a union when presented with cards by a majority of the workplace. No election necessary, although workers could still request one. This is why it’s commonly referred to as the “card check” bill.

The bill also provides a federal mediation process for instances when first-time contract negotiations reach an impasse, with a final binding arbitration measure as a last resort if agreement can’t be reached. And it increases the penalties for employers who violate collective bargaining labor laws.

University of New Mexico emeritus law professor Richard A. Gonzales, who teaches labor law, told the Independent that it used to be much more common for companies to just go ahead and recognize unions through a card check process, but that things have changed significantly over the last 30 years.

“The thing to keep in mind,” Gonzales said, “is that federal statute doesn’t require an election. It simply says that a union refers to a representative of the workers designated or selected by the majority of the employees in the bargaining unit. And management can choose to recognize a union based on the signed cards.”

But these days companies generally insist on an election, which Gonzales said hurts the chances of the union.

“If this statute passes, the pendulum swings in favor of unions,” Gonzales said. “The way the law is now, even with a card majority the employees usually still have to go to an election that really hurts their chances of forming a union. Right now it’s extremely difficult to organize.”

Carter Bundy, political action representative of the American Federation of State, County and Municipal Employees, explained to the Independent why organizing is so difficult: “A large number of workers who try to organize [around the country] are fired, demoted, or otherwise punished by their employer. Companies also try to bully employees into voting against the union, with threats of shutting down facilities and layoffs.”

At the same time, Gonzales said, unions have little opportunity to intersect with the workers to give a competing perspective of unionization. They can’t enter company property and don’t have a way to contact all the workers. So the period before an election is really a campaign in which one side has a very large advantage.

But opponents of the Employee Free Choice Act couch things very differently — they say that it’s unfair to deprive workers of the “secret ballot.”

Is an election necessary?

In a November press release, the Greater Albuquerque Chamber of Commerce said that not requiring an election would lead to “coercion and pressure” on employees:

“The union would be certified and the employer would be obligated to enter into collective bargaining — all without a secret ballot election from the workers. Employee decisions on unionization would be made in front of union organizers greatly increasing the opportunity for coercion and pressure, from both sides, in the union organizing process.”

Jacqueline Dubose, lobbyist for the chamber, told the Independent that this comes down to the basic issue of privacy:

“One of the main values of our system is the protection of privacy in elections. Everyone is entitled to cast a ballot and know their privacy is protected. Ultimately, this protects the employee from coercion by both the employer and the union.”

When asked about the concerns that employees might be coerced to sign cards if there were no secret ballot, Gonzales said there might be something to it.

“Management often says [the card check process] puts a lot of pressure on employees. They might just sign it to get the organizer off their back — because otherwise they’d be blackballed, called a scab, or treated like a traitor,” Gonzales explained. “Plus, it follows if such pressure exists that the cards don’t reflect true sentiment.”

But proponents of the act say this is a straw-man argument by employers who simply don’t want unions.

“Implicit in their argument is the notion that the current system works, that intimidation isn’t present in the current system,” Trumka said. “But the current system is company dominated and company controlled. They can call employees in one on one and quiz them, threaten to fire them. Over 25,000 people a year get fired for being pro-union. They like the current system.”

In order to petition for an election, workers already have to present cards signed by at least 30 percent of the workplace and it’s common practice to present much more than that because organizers know they will ultimately need a majority during an election. So in this respect, union advocates point out, those workers who support the union already openly sign cards.

Bundy also pointed out that when promoting democracy, the card check system has an advantage over elections because the card check process requires an absolute majority of the workers, while an election requires a majority of those who turn out for the election.

“While a secret ballot makes sense in politics, this isn’t politics. There’s no reason that people shouldn’t be allowed to voluntarily join an organization like a union if they want to. It’s easier, less acrimonious, and requires more workers to want a union than elections — therefore being more democratic. For instance, an election usually has a 40 percent turnout threshold, with majority winning. In other words, 21 percent of the workers can bring a union in if an election is used.”

Negotiating a first contract

While the issue of the secret ballot is emphasized mostly, the mediation and arbitration provision is also highly contentious. Labor leaders say it’s essential due to delaying tactics used by employers who can drag out a negotiation process for years. If a fledgling union goes years without a first contract, the danger is that the employees will lose morale and ultimately decertify the union.

Shane Youtz, a New Mexico labor lawyer with the firm Youtz & Valdez, said in an interview that almost 50 percent of new unions fail to win a first contract.

“Management has learned to avoid, delay and execute legal maneuvers which prevent agreement on a first contract.” Youtz said. “First contract arbitrations provide absolutely necessary support for workers who want a union in the workplace — it guarantees that they will get what they seek — a collective bargaining agreement.”

Dubose countered this by emphasizing that the majority of unions do win a first-time contract. And, she said, it just makes sense that the best negotiation is one in which the two parties concerned come to agreement, rather than having an agreement imposed by an outsider.

And the Albuquerque Chamber’s formal statement on the bill said that the arbitration measure would remove any incentive for either parties to bargain in good faith. Instead, the chamber argued, both parties would be posturing for the arbitrator.

Youtz, though, cited a nurses’ union in Las Vegas as a good example of how difficult it can be to win a first contract. The union won an election about 18 months ago, but the employer, through “nonstop” appeals, hasn’t yet had to come to the table.

“We won’t get to the table for probably another six to 12 months, and I expect management to continue delays.” Youtz explained. “The risk for the union is that it will lose majority support if two years after the election they still don’t have a contract.”

Ultimately, the question is whether or not current law protects the right that workers have under the law to organize. Business interests say it does. Labor says it doesn’t.

The incoming president and Congress will likely decide the matter very soon.