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March 10, 2009

The Employee Free Choice Act and the "secret ballot"

The fight for the Employee Free Choice Act is on:

Senator Tom Harkin of Iowa, who plans to introduce a bill on Tuesday that would make it easier to form unions, said in an interview, “We have enough votes to pass the bill in the Senate.”

But then Mr. Harkin acknowledged, “I’m not sure if we have enough votes to overcome a filibuster.”

Showing how close the vote might be, Mr. Harkin said the bill would probably not come up for a vote until late April or early May, at which point he expects Al Franken to be sworn in as a Democratic senator from Minnesota. That would give the Democrats, including two independents, a 59-seat majority, but it doesn’t guarantee that all Democrats will vote with their caucus to clear the 60-vote filibuster hurdle. [NYT]


Business groups are spending millions of dollars to spread misinformation about Employee Free Choice. The biggest lie is that EFCA would threaten the principles of union democracy that Wal-Mart and CINTAS have long held sacred.

Management groups object to majority signup (aka "card check") for the simple reason that it would make it easier for workers to have a union if they want one. The anti-EFCA groups make it sound like card check would be a departure from the status quo under which the right of the worker to a secret vote is respected.

Far from being an exotic reform proposal, unionization by card check is already an option.

In fact, every unionization effort starts with organizers collecting the signatures of workers who are interested in forming a union.

If organizers can get at least a third of the workers in a shop to sign up, then the union can ask management for permission to represent those workers at the bargaining table. One third is just the legal minimum. In practice, organizers don't try to organize shops without strong majority support. It's just not worth their time.

At this point, the employer has the option of recognizing the union based on the card check.  Alternatively, the employer can demand a National Labor Relations Board election.

Let's be real. Employers don't ask for NLRB elections to preserve right of their workers to democratic self-determination.

Forced elections buy management time to bring in high-priced union-busting consultants who teach the bosses how to propagandize workers and fire organizers.  Such tactics are illegal, but under the status quo, the penalties are trivial and enforcement is negligible.

In the latest issue of the Washington Monthly, T. A. Frank describes how Rite Aid used classic illegal union-busting tactics to thwart California warehouse workers who sought to join the ILWU.

Frank argues that, in terms of facilitating unionization, the majority signup provision of the Employee Free Choice Act is less important than toughening up our existing laws against union-busting. Of course, EFCA would also crack down on punitive firings, captive audience propaganda sessions, and other abuses of power in the runup to NLRB elections. However, Frank notes, anti-EFCA management groups have framed the debate as a fight over card check because they'd rather paint themselves as champions of democracy than as champions of union-busting. Democracy focus-tested better.

Under the Employee Free Choice Act, workers would still have the right request an NLRB election.

Under the status quo, the employer gets to decide whether there will be an NLRB election. Under Employee Free Choice, the employees choose how their votes will be counted.

If most people in the shop are satisfied with card check, then the employer will have to defer to the will of the majority. That's democracy.

Update: TAPPED plums

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RE "Under the Employee Free Choice Act, workers would still have the right request an NLRB election."

Which workers would have to want that election for it to take place?

It would be the workers in the shop that's voting whether to be represented by the union. If a union circulated a registration by card check in a certain shop, the workers in that shop could also circulate a petition saying "We want an NLRB election," and they would be entitled to one.

So if they got a majority of workers to sign a pro-election form before the others got a majority of worker to sign a union-now form, then there would be an election?

It seems this law removes a worker's right to be anonymous in the voting.

Have you considered union tactics in persuading people to vote in the union and the value to them of a worker's identity? Do you understand what agency shop is?

Have you considered whether federal and state labor laws can deal with unfair issues in the workplace. Are you advocating the end of "at will" employment, in favor of "for cause" employment? Isn't this like tenure for teachers - which has drawn a high amount of criticism.

Have you considered that forcing an employer, for example, to submit their employee benefits to binding arbitration is not free enterprise? Are you advocating the end of free enterprise?

Federal and state laws set minimum wage. Everyone recognizes health care is broken and needs to be fixed. Conditions of work are dealt with under OSHA laws.

Consider the automakers - is it their "legacy costs" that have bankrupted them? What is a legacy cost? What did the unions do to contribute to that?

Just google any union and see what comes up.... and then consider union tactics as well, and present an objective analysis. I think you're off the mark on this one.

http://laborpains.org/index.php/2008/12/11/seius-pay-for-play-scandal/

http://www.calnurses.org/media-center/in-the-news/2008/august/tyrone-freeman-steps-aside-as-head-of-seiu-chapter.html

Oh boy, an EFCA post. Nothing like it to bring out the anti-labor liberals:

"Unions are untrustworthy. Workers' problems should be taken care of by enlightened bureaucrats in OSHA or the NLRB with masters degrees from The Right Universities. People like...well, us!"

I actually kind of prefer conservatives who just flat-out say they're against unionization period, to liberals who say, "Well, we support union organizers gathering signatures, but only if it doesn't make anyone feel uncomfortable." That's another way of saying "no unionization." Given that you're asking someone to potentially risk their job for the uncertain prospect of working conditions getting better in the future, there's really no way of having that conversation that isn't uncomfortable. There are also employees who have anti-union views because they've heard all these stories about how awful some unions are. They get approached by an organizer and think "Are they going to come after me if I say no?" even if all the organizer did was ask for a signature.

Don't like card check? Okay, what do you propose replacing it with then? Should organizers gather signatures calling for a secret ballot election instead of direct unionization? Well, no, that just changes a line or two on the paper they're signing. People could still feel uncomfortable. I know! How about organizers set up on the sidewalk outside the workplace with a folding table, a coffee can with a slot cut in the lid, and a pile of anonymous ballots and poll the employees on whether they want to ask the NLRB for a union as they walk in the door? Oh no, wait, I suppose the organizers could stuff the coffee can before or after they left for the day. Plus the organizers would be able to see who filled in the ballots and who just walked past the table, so the potential for intimidation is still there. Well, shoot, what alternative unionization methods are there? [Crickets. Tumbleweed.]

All these well-meaning liberals who are against EFCA because card check (which is practiced already) could make someone feel uncomfortable seriously need to step out of their ivory towers.

BTW, Lennox532:

Why are unions "anti-free-enterprise"? If employers have the right to concentrate their capital and this is considered an integral part of the free-enterprise system, why shouldn't employees have the right to concentrate their labor in the form of unions?

Whether the rest of EFCA is a good idea or not, card check is still abandoning the secret ballot process, and it's still a bad idea. It's not only the employer who pust pressure on employees when it comes to unionizing.

Under the status quo, the employer gets to decide whether there will be an NLRB election.

You're right. That's pretty silly. Unionizing should always require an NLRB election. The right to vote belongs to the voters, and neither the union nor the company should be able to take it away.

If the unions have nothing to fear from a secret election, then why are they afraid of it? "The employees will get intimidated" is not persuasive. That's why it's a secret ballot. "We must save the union from the employees!" is not exactly an inspiring rallying cry.

"Let's be real. Unions aren't asking for EFCA card checks to preserve the right of employees to democratic self-determination."

If the unions have nothing to fear from a secret election, then why are they afraid of it? "The employees will get intimidated" is not non-responsive. That's why it's a secret ballot.

"Let's be real. Unions aren't asking for EFCA card checks to preserve the right of employees to democratic self-determination."

I have no idea who "these well-meaning liberals who are against EFCA" are. The petition of economists who are pro-EFCA includes a lot of neo-liberals and defenders of globalization who the radical left hates. The only major neo-lib whose name is not on the petition, Larry Summers, is working for the administration that's pushing EFCA.

It's of course noted that Senator George McGovern, a lifelong supporter of union rights, has grave reservations about this bill. As do I.

There can be a lot of intimidation on the shop floor, and if it's easier to keep everything public, there will be a lot more intimidation to sign that card and get the organizer and his friends off your back.

A lot of workers hate their boss, but don't think that lots of them don't hate unions, and their secondary layer of control, also.

And yes, as was noted above, the deathbed condition of the automakers has two sets of fingerprints on it. That of the catastrophically bad management, and that of the UAW, which grabbed everything they could, to the point of jeapardizing everyone's job and every auto worker's pension.

What's wrong with NLRB elections? They're the bureaucratic equivalent of a show trial. They make a mockery out of the very idea of democracy.

An election is only meaningful if there's a free and fair campaign. If you don't have a level playing field, then it's not an election, it's a sham election.

Workers who support a union don't have equal freedom to campaign for the union. The employer has total control.

In the run up to the election, union leaders routinely get fired. The NLRB reinstates people all the time for illegal termination due to organizing, I reported on the issue for The Washington Monthly. If you just go by the reinstatement numbers, not even counting the percentage of people who don't even try to get their jobs back, something like 1 in 5 active and visible agitators for a union gets canned during NLRB elections. What kind of democracy is that? "Campaign" for the union, lose your job.

Hi, Another Chris... You asked: Why are unions "anti-free-enterprise"? If employers have the right to concentrate their capital and this is considered an integral part of the free-enterprise system, why shouldn't employees have the right to concentrate their labor in the form of unions?"

I agree that employees "own" their labor and have the right to form a collective to increase their leverage... but the union is a business, not an altruistic non-profit fighting for the common worker.

Furthermore, my idea of capitalism is that there is limited regulatory control - supply & demand drives the market.

As I understand it, now laws regulate wages, hours and working conditions. Employers must pay minimum wage, Employers must pay overtime for hours over "x", and working conditions must be safe. To get better working conditions that the minimum required by the government, unions can exercise their collective leverage and strike, unions can seek government intervention if after collectively bargaining, the parties are at impasse and mediate to try and reach agreement. IN other words, the government says an employer has the duty to bargain with a union, but the government does not require either side to accept a contract or make a concession. As I understand it, the NLRB can tell an employer that they engaged in an unfair labor practice but they can't tell an employer what pay and benefit package an employer must pay to workers. In other words, the government has not vested the NLRB with the power to force employers to pay a certain percentage of their profit to workers. If an employer has to go to binding arbitration and pay what an arbitrator says, for a period of two years, doesn't the economic system change to a system of "from each according to his ability, to each according to his need?" Is this a government-sanctioned redistribution of wealth? So how is that free enterprise? (Not that I wouldn't like my employer to pay me more....)

The reason that unions want to do away with the secret ballot is because they don't win about 50% of the time. They say that is because of "union busting consultants." I would guess it is because they have a bad reputation (corruption, out of touch, greedy, more concerned about spending dues money on themselves and on politicians, workers who just don't want to pay dues, etc.). I am also disgusted that the Democratic leadership and the Administation seem obsessed with issues either unrelated to our economic crisis or just adding to investor distress. I and most Americans worry every day if the next round of layoffs are going to hit me, my family or my friends. Focus on that. No union is going to save a job. I would venture to say they do more harm to American jobs than help.

Why aren't the EFCA critics engaging with the substance of the argument? The status quo doesn't guarantee an NLRB election. Card check is a legal way to form a union, unless the employer wants to fight it. NLRB elections are not an enshrined principle of anything. They're just a stalling tactic to give the employer time to propagandize and intimidate workers.

"They're just a stalling tactic to give the employer time to propagandize and intimidate workers."

How can the employer intimidate workers when it's a secret ballot ? If the workers truly and deeply wanted a union, you'd think a secret ballot would be no obstacle. After all, you can always tell your boss "I'm with you all the way, hate those slimy unions" while voting for the union. The fact that many employees support the union publicly but vote against it secretly suggests that they're not really so crazy about unions.

Let's imagine a situation in which employees were against the union publicly (don't want to offend the employer) but voted for the union secretly. That would suggest that employees were in fact intimidated by the employer. But in reality it's the reverse, which suggests that employees are more intimidated by the union than by the employer.

Lindsay, the status quo may not guarantee an NLRB election...but it should. You're right that allowing the employer to control elections is stupid. However, the solution is not to eliminate elections but to require them in all cases.

Some employees want the union, and some don't. One side of that conflict is going to win and get to force the other side to abide by their decision. We usually decide such things with an election. The NLRB elections may be a mess, but it's not a solution to make them less democratic. And if elections are a stalling tactic, the solution is to speed them up.

Also, and this is an honest question because I don't know the answer, when the union is getting people to sign cards, who knows about it? Under the EFCA could employees come to work one day and find themselves part of the union because of card check without them ever knowing a campaign was underway? If so, that's not free choice.

Have you read T.A. Frank's article on union organizing, linked to in the original post? He describes some of the standby tactics: Firing perceived employee ringleaders, recruiting moles to spy on employees who try to meet on their own time to organize, holding mandatory propaganda sessions, threatening to close the shop if the workers vote for a union.

The initial card check step is never secret.

Workers know that the employer is still going to be the employer, whether or not the union is certified. So, the employer intimidates workers into voting against the union by sending the message that anyone who openly supports the union is committing career suicide.

In NLRB elections, pro-union workers risk being fired just for talking about the union to their coworkers, whereas the boss can force everyone in the shop to attend a weekly anti-union propaganda meeting. Is that democratic?

I'm not in favor of mandatory anti union propaganda meetings, but if its on the clock at least they're being paid for listening to it!

Read "The Perils of Union Activism Have Been Greatly Exaggerated," a Littler law firm article as a balance to T.A. Frank's article. Many of the so-called studies claiming union harassment and terminations were based on survey responses of union leadership and organizers. This is especially so with research conducted by Kate Bronfenbrenner of Cornell, who is always paraded around by labor groups as the expert on union harassment.
Under the usual process of organizing, the cards are presented to the labor board and there is a 40-42 day period where both sides are given the right to get their message out. It is not much different than any political campaign, and yes, both the employer and the union may spin their message to seek a vote favorable to them. Again, the fact that the facts stink for the labor movement isn't the fault of corporate america. Unions know that they have a marginal "product" to sell. That's why they hate the campaign period and want to do away with it.

In NLRB elections, pro-union workers risk being fired just for talking about the union to their coworkers, whereas the boss can force everyone in the shop to attend a weekly anti-union propaganda meeting. Is that democratic?

No, and firing workers who talk about unionization is against the rules. Those rules are poorly enforced, and it's something the EFCA would try to fix with harsher penalties. That's why I'm not arguing against that part of EFCA, nor the part about arbitration if contract talks fail.

Also, it's not as if unions don't have a long history of doing some propagandizing and intimidating of their own. From what I remember of my dad's time in the Teamsters, it's not hard to imagine two or three union organizers ganging up on employees one at a time and pressuring them to "just sign the card."

And yes, I read T.A. Frank's article. Did you?

"What most undermines the secret-ballot process is that employers can violate the law in numerous ways without consequences. Under EFCA, however, every illegal action has the potential to be costly, so firings, spying, threats, or other forms of intimidation would be less likely. Also, there is an alternative way to preserve the secret ballot while guarding against company malfeasance: expedited elections. Under current law, months can go by between when NLRB announces the results of a card check vote and when a secret-ballot election is held. If, however, this campaign window were reduced to just a few days, employers would have less opportunity to intimidate union supporters into changing their minds." (emphasis mine)

Eliminating secret ballots is destructive to democracy and unnecessary to accomplish the ostensible goals of the EFCA.

Regarding the question of how employees can be intimidated by an employer when the ballot is secret:

If the employee expects to be asked how he voted by his boss, and that employee doesn't like to lie, or isn't a good liar, and knows that refusing to answer would be taken as a pro-union answer...

So the secret ballot leads to intimidation, and up is down, and black is white . . .

Of course it's illegal to fire people for organizing, but it happens anyway. The penalties for getting caught are trivial.

The larger point is, how can you consider any election fair when one candidate has the unilateral power to fire the other? This is a structural flaw in the NLRB process.

Note that NLRB elections only happen if the employer is hostile to the union. If the employer were neutral or friendly, the initial card check would have been enough. The only reason the employer would demand an election is to discourage employees from voting to unionize. Even if the boss doesn't resort to illegal tactics, the employer is always going to have the upper hand in an NLRB election.

Lindsay says, "If the employer doesn't resort to illegal tactics, the employer is always going to have an upper hand in an NLRB election." Really, then why do unions win more secret ballot elections than employers?
Also, most employers that are neutral on unions are so because they reached an "understanding" with the union due to some type of corporate campaign attack by the union. Any rational for profit company and any rational non-profit would speak out against their employees becoming unionized. Unions generally bring inflexibility, negativity, and favor the least productive. That's why even "progressive" companies fight them--such as Starbucks and Whole Foods. Even unions try to stop their own staff from unionizing!

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