The Employee Free Choice Act finally is getting its day in the Senate. Tuesday, the Senate Committee on Health, Education, Labor and Pensions held hearings on the act, which was passed March 1 by a 241–185 House vote. The Employee Free Choice Act, which would level the playing field for employees in deciding whether to join a union, will be introduced in the Senate today or tomorrow. (I’ve blogged a bunch about the Employee Free Choice Act on FDL here, here, here and here.)

The bill faces a tougher time in the Senate than in the House, where nearly all the Democrats and 13 Republicans voted for the bill. Big Business mouthpieces have held their powder for the fight in the Senate, where they are trying to ensure it is not passed with the 60 votes needed to override Bush’s inevitable veto. If you’re in the D.C., area, you’ve probably seen the attacks against unions this week on the cable TV channels. The ads are vicious—actors pretending to be workers slamming unions, cute little kids wondering why unions want to take away the secret ballot election. Millions of dollars are being spent to mislead the public and slur unions through these ads, which are paid for by the erroneously-named Center for Union Facts.

The group, run by Richard Berman, instigator of sleazy PR campaigns like the one he ran against Mothers Against Drunk Driving on behalf of the alcohol industry, refuses to reveal the source of its funding. It’s likely the States Chamber of Commerce and National Association of Manufacturers are among the top contributors to the group, which, when it was formed last year, started out with at least $11 million. (The employee advocacy organization American Rights at Work counters each of Berman’s claims, fact by misleading fact, here.) The amount of money Berman’s vitriolically anti-union group is spending highlights one of the main themes that came out in this week’s Senate hearing: the intensity of employer opposition to workers who seek to form unions. When Sen. Edward Kennedy, longtime champion of the Employee Free Choice Act, asked law professor Cynthia Estlund to describe how the circumstances have changed at workplaces since the nation’s labor laws were established in the 1930s, she responded that employers are much more anxious to avoid unionization and are spending millions of dollars on hiring “union avoidance” consultants.

At union avoidance firms, they teach firms: “What happens if you violate the law? Chances are you won’t get caught. If you do, there will be a second election and employer will win in 96 percent of cases.”

So, while it’s illegal to fire workers for trying to form unions, corporations do it because they know they can get away with it, suffering little or no penalty. As Estlund, a professor at the New York University School of Law, puts it,

It takes years for unfair labor charges [by employees who are fired, or suffer other adverse actions by their employers] to work through the process, so by the time the NLRB [National Labor Relations Board] has validated a first election, years have gone by and the organizing drive is long dead and gone by the time that re-election comes along.

And, as Kennedy pointed out, the average back pay awarded by the NLRB to workers—usually after several years have gone by—is $3,800.

Former Tyco CEO Dennis Kozlowski spent a lot more than that on a poodle umbrella stand for his corporate penthouse. In recent years, corporations have paid billions of dollars to stop workers from forming unions and getting better pay, affordable health care and secure pension—in many cases, spending more to stop unionization than they would if they actually just ensured their employees received family-supportive wages.

And companies that are unionized remain highly competitive: Costco spends 40 percent more on its unionized workforce than Wal-Mart does on its nonunion workforce, yet Costco generates nearly twice as much profit per employee than Wal-Mart’s Sam’s Club. (Economic Policy Institute President Lawrence Mishel pointed out that comparison in today’s testimony.) So, if it’s not really about money, the other option is obvious: Power.

Among the biggest expressions of this power is the so-called secret ballot election process by which workers now indicate whether they want to join a union. During the Senate hearing, Peter Hurtgen, a management lawyer and former Bush appointee to the NLRB, repeated the same tired—and erroneous—management mantra against the Employee Free Choice Act, saying it takes away secret ballot elections. It doesn’t. Under the Employee Free Choice Act, workers have more, not less, choice in how they form a union. Kennedy asked another witness, Errol Hohrein, about his experience with the ballot process. Hohrein recently tried joining the United Steelworkers while at Front Range Energy’s $50 million state-of-the-art ethanol plant in Windsor, Colo.—and was fired. Says Hohrein:

We had a secret ballot election and it didn’t make any difference. The company put pressure on the workers. The company questioned everyone how they were going to vote, they took them in back rooms and browbeat them. They said if the union came in they’d shut down the plant or move or fire everyone. They had absolutely no respect for this election.

Hohrein, a Vietnam veteran and former junior high school teacher with a wife who is a special education administrator, says if the Employee Free Choice Act had been law, he wouldn’t have had to go through the management-controlled election process. Instead, he simply could have signed a card indicating his desire to join a union.

We’re on the brink and no one is looking out for us. What the Employee Free Choice Act does is restore the right to bargain for people like me.

Estlund puts it even more bluntly:

The secret ballot becomes a kind of trapping of democracy, a parody of democracy.

When Sen. Lamar Alexander justified the need for the ballot process at the workplace by comparing the union voting process with Senate elections, Estlund pointed out the inaccuracy of such a comparison.

Imagine Senator, in your first run for election, the employer employed all your voters…and whatever the results of your election, the incumbent will stay in office.

Some 60 million wage workers say they would join a union if they could—and that’s a lot of power. Power that employers are willing to spend billions of dollars to stomp out. As Estlund puts it:

The modern anti-union campaign, as it has been honed in recent years by growing legions of well-paid “union avoidance” consultants, makes the secret ballot a wholly inadequate guarantee against coercion and intimidation. The standard employer campaign includes express or implied threats to shut down or relocate the business, predictions of violence and confrontation, of lost business and degraded workplace relations, of refusal to grant concessions or even maintain existing benefits….[T]here is no reason to believe that employers will stop making exaggerated predictions of disaster and of their own recalcitrance that lead employees to fear the consequences of forming a union. The secret ballot is no protection whatsoever against that kind of intimidation.