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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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I am generally a liberal on many issues, and also voted for Obama so this is something I have given a lot of thought to before coming to a conclusion. I am flabbergasted that even the most ardent pro-union activists cannot see the truth behind why unions want this bill. Brutal regimes around the world subvert voting confidentiality as means to intimidate voters into voting against their true conscience. This is EXACTLY why the unions want this law. They are losing their former tight grip on American workforce and American businesses. This absurd law will give them an easy means to bully workers by making it public as to whether they voted to support unionization.

There is ONLY one way to ascertain the will of the people in a democracy and a workplace - and that is to allow everyone to vote in a confidential manner.

The ONLY reason that this bill is being pushed for is that it is becoming the only way for unions to keep their powerful grip on American workers and American Industry.

This loss of power results from the fact that we have finally becoming wise to the true impact of what Unions have done to our economy. One need look no further than Detroit, where after decades of a SINGLE union having the ability to shut down an ENTIRE industry, the Big 3 have been forced into a cost structure that makes it impossible to compete globally. So what is our government doing? Passing a bill to allow the spread of this cancer to more American businesses just when we need some relief.

Employees need to be able to FREELY choose - to ACCEPT or to REJECT unionization. This bill will kill that choice.

I don't know why anyone thinks a company could intimidate workers. It's not like Wal-Mart has closed a store in Canada when they unionized or eliminated meat cutters from all of its stores because one group unionized in Texas. Oh wait, that did happen. Another typical thing Wal-Mart does is to send union supporters to other stores and replace them with non-union workers when that store wants to form a union. This means it's impossible to have a fair election at Wal-Mart. Still, I would be ok with leaving the election guarantee in if they were expedited and if there are harsher penalties for illegal anti-union activities.

GDL, right now about 13% of workers are in a union and the highest ever was about 35% not exactly a strangle-hold. Also the percent of financial workers unionized is less than 2%. Does that explain why the financial industry has collapsed and cost us trillions of dollars?

Q. What happens if an aggrieved employee files a claim with the NLRB of unfair labor practices by an employer?

A.1. If the employee was not fired already, there is a good chance the employee will be fired.

A.2. Management lawyers will 'beat the shit' out the the filer through a process that is, by all objective standards, as pro management as it gets.

A.3. The employee would have to be sustained, somehow, through a process that WILL take years to reach a final conclusion.

A.4. Should the employee receive a favorable ruling from the NLRB (Yes, your employer engaged in an unfair labor practice.) that ends the role of the NLRB. The NLRB cannot or does not enforce any redress of the employee's complaint. Now the employee must file suit to obtain any redress or recover loss or get the employer punished.

A.5. Go back to A.2. and A.3. and repeat as many times as necessary through successive appeals.

A.6. Labor laws in this country are about as pro management as they get, by any objective standard.

A.7. Labor laws in this country are about as pro management as they get, by any objective standard.

A.8. Labor laws in this country are about as pro management as they get, by any objective standard.

A.9. Labor laws in this country are about as pro management as they get, by any objective standard.

n 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?

The boss can also force everyone in the shop to attend a weekly sales meeting. Is that democratic? No, because the relationship between an employer and an employee is inherently un-democratic.

But the question regarding secret ballots in union elections is as much about employees' relationships with each other as they are about the employees' relationship with the boss. I think it's the inter-employee relationships that opponents of this particular provision of EFCA are mostly referring to.

Lindsay, you haven't responded to windypundit who mostly agrees with you regarding the obstacles to fair opportunities for union organizing but identifies solutions to them that don't include eliminating secret ballots. Why do you find that argument unpersuasive?

I'm willing to bet the people speaking up for the so-called "secret ballot" have never been through an actual union election.

I have been, and I can tell you: NLRB elections are nothing like the elections we know for school board or city council -- because one side has continual access to (and control over the paychecks of) the voters.

The large majority of employers hire anti-union consultants to teach them how to evaluate the stance of every employee. They hold one-on-one meetings where a manager urges his or her direct report to vote no, often making veiled or direct threats about the results of a yes vote. Threats are illegal, but no outside party is there to document them.

Being vague or seeming undecided is grounds to be called in for repeated private meetings: you can imagine how intimidating this is. And there's nothing private about anyone's stance: supervisors are asked to report to higher-ups where all their charges stand on the vote.

Many employers fire workers who stand up for the union, either in the guise of a layoff or by trumping up a disciplinary charge. This is illegal, and some of these employees get their job back -- but not for years, by which time they've lost considerable income and the union vote has gone down in flames.

The system is broken. We need a change.

"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 about the deathbed condition of most of our major financial institutions? Conveniently forgotten because there were no unions involved and just one set of fingerprints.

Dave Palen knows nothing about the history of unions, evidently. What is a "progressive company" anyway? Seems kind of contradictory.

Not that I'm anti-business, but as Obama pointed out to the Wall Street Journal during the campaign, thanks to the genius of American capitalism, productivity in the economy has grown regularly since the Nineties. However, your average employee hasn't gained their fair share in the rise of productivity. A revitalized labor movement would be one way to help right the balance.

What you have had is income redistrubited upwards and then funneled not into productive investmensts but into speculation by overleveraged, underegulated banks and financial insitutions (who are "too-big-to-fail" and guarenteed to receive bailouts) and in some cases into Ponzi schemes. And Dave is upset with unions who have become less and less relevant over the years thanks to scapegoating by business groups like the Chamber of Commerce? I find his arguments suspect.

Peter K, you aren't anti-business but you think the "progressive company" is a contradiction in terms? If you can't even conceive of a company that might be progressive, I think it's fair to describe you as "anti-business."

Peter: in the 1990s, workers did share in productivity gains. The rich shared more, but even the poor did well by historical standards.

Lennox: there are unions, and there are unions. American unions tend to be among the worst, partly because racial issues prevented the New Deal coalition from enacting universal pension and health care provisions, and partly because the way the US political system is set up encourages competition between different interest groups. This is not how this always works. For example, in Germany and Scandinavia, unions generally negotiate as a whole bloc, rather than as individual unions; in Germany, unions are also willing to accept concessions and refrain from striking when productivity growth is low.

Norman, Secret?: I don't see any argument in your posts that a card check will make it harder to intimidate workers. I see you argue that union organizers' lives are hard, and that card check will make it easier to unionize, but nothing about why it will reduce intimidation.

JonhL: the issue isn't the financial industry, which has been hit by a crisis. The issue is the US auto industry, which has been on life support ever since the 1970s, when the US started erecting trade barriers against Japan under pressure from GM. Saying that the UAW didn't help drown GM because finance is not unionized is like saying that deregulation didn't help cause the current crisis because GM is regulated.

Peter K-- I actually know a lot about the history of unions and used to work for one! One can actually be against EFCA and not anti-union. I am pro-worker and don't want to take away their right to vote by secret ballot. The latest union spin is that under EFCA workers can still choose between a secret ballot and automatic card check recognition. That is a lie, as it is the paid union organizer that makes this decision; the workers won't. EFCA is not fixing a broken system. In fact unions win more secret ballot elections than they lose. Unions just want to make the process easy for them. They can say anthing to get workers to sign cards. If there is no ability of any other party to respond to the union promises they will get the right to collect more dues. It is a disgusting piece of legislation. Lastly, would it not make sense for all our politicians and especially Obama to focus on the economy? Most Americans are terrified about losing their job. Let's deal with this issue and stop playing around with crap issues.

Just to clarify, the Employee Free Choice Act wouldn't take away the right to a secret ballot. Workers could still have an NLRB election, if they wanted one. What Free Choice would abolish is the prerogative to force workers to hold an election they don't think is necessary.

Alon Levy,

You are correct. I did not, and I am not addressing the specifics of the card check provisions of the EFCA. I don't want to. In this discussion, people of good faith are debating whether a particular voting technique is really democratic, or fair, or whatever.

I am less concerned that life for a UNION ORGANIZER is hard. I am more concerned that the EMPLOYEE, who is the victim of unfair labor practices, has NO (read that, NO, NO, ABSOLUTELY NO, A THOUSAND TIMES NO) legal recourse in a system that is, by any objective standard, completely pro management.

So debate away, everyone, on the check card provisions, as you should. But don't lose sight of the fact that there is no other legislation pending that even comes near to leveling the playing field. The National Labor Relations Board is really the National Management-Can-Do-Whatever-It-Wants Labor Relations Board. Can anyone seriously argue that my renaming of the NLRB is hyperbole?

I don't care whether it's a check card provision, or using tweezers to pluck your eyebrows. We need to remove the exclusive authoring and sponsoring of labor law away from being the sole purview of management.

real world translation

-- to force workers to hold an election when the union prefers not to have one --

The workers are not the unions, not by a long shot.

Yes, the workers are different from the union organizers. The outside union organizers wouldn't get to decide whether to have an NLRB election under the Employee Free Choice Act, the employees would.

If your theory is that the Big Bad Union Organizers would be controlling the employees' decision about whether to have an NLRB vote, then you can't very well argue that the employees don't want a union.

If the employees are choosing to side with the union, that would suggest that they want a union--which was what this whole exercise was ostensibly designed to determine in the first place.

I believe the argument is that the BBUO would intimidate employees into saying they don't want an NLRB vote.

Lindsay, as I understand your position, it is that you aren't against the secret ballot per se, but that you think the elections themselves are a pretext to give companies time to engage in anti-union activity and intimidation during the period between the decision to hold the election and the vote.

Can you respond to the suggestion that the way to fix this and preserve the value of a secret ballot is to mandate an election in every case, increase penalties for illegal anti-union activity on the part of management and require the election to be held very soon after union organizers have collected enough signatures to warrant a vote?


Peter K, you aren't anti-business but you think the "progressive company" is a contradiction in terms? If you can't even conceive of a company that might be progressive, I think it's fair to describe you as "anti-business."

I think it's a marketing gimmick. It's a ploy. Businesses exist for one purpose: to make a profit. If they dont' make a profit, they cease to exist. (unless you're a too-big-to-fail financial institution or auto company, then you get bailed out by the taxpayers.) So it's not surprising when companies that want to advertise themselves as "progressive" like Starbucks or Whole Foods turn out not to be progressive about certain things, especially when they're struggling, as Whole Foods has been. (And you have a tin ear, Starbucks has never really been considered "progressive" by those in the know. Remember Dr Evil's headquarters is like a Starbucks in Austin Powers. It's always had an Evil Empire/Microsoft reputation. Even so I frequent Starbucks all the time, along with local ma and pa shops. I dont' care.)

A company does come to mind as one that acted "progressively;" Qwest, who refused to cooperate with the Bush administration over illegally wiretapping American citizens without warrants. Whereas AT&T and other businesses happily went along and did their patriotic duty to break the law.

Actually, Qwest was just following the law which is acting "progressively" these days I guess.

Peter K

(And you have a tin ear, Starbucks has never really been considered "progressive" by those in the know. Remember Dr Evil's headquarters is like a Starbucks in Austin Powers. It's always had an Evil Empire/Microsoft reputation. Even so I frequent Starbucks all the time, along with local ma and pa shops. I dont' care.)

Perhaps I have a tin ear--apparently you have a tin eye, because I never claimed that Starbucks was a progressive business. I didn't make any claims about Starbucks whatsoever.

I think the claim that "businesses exist for one purpose: to make a profit" is rather too expansive. I ran a small business several years ago, and my motivation for starting the business wasn't to make a profit but to make gay literature available for order on the web and introduce readers to books I liked myself. I never did make any money doing it, but I was satisfied because the business achieved the goal I had in mind. I can't imagine the only one who's ever run a business because I enjoyed doing it and wanted to accomplish something.

"I ran a small business several years ago, and my motivation for starting the business wasn't to make a profit but to make gay literature available for order on the web and introduce readers to books I liked myself."

Why aren't you doing it anymore? Did you not make a profit or did undercut you?

There's nothing wrong with making a profit. Most successful companies reinvest profits in new technology or in expanding their business or whatever.

Why aren't you doing it anymore? Did you not make a profit or did undercut you?

There's a number of different reasons I gave it up, but probably the most significant factor were credit card processing companies and internet hosting sites that didn't allow "porn" and were likely to deem anything with gay content as deserving of that label.


"Can you respond to the suggestion that the way to fix this and preserve the value of a secret ballot is to mandate an election in every case, increase penalties for illegal anti-union activity on the part of management and require the election to be held very soon after union organizers have collected enough signatures to warrant a vote?"

You asked Lindsay to respond, but I'd like to take a shot at this.

"...mandate an election in every case...": This is really a thought experiment. Who will do the mandating, and under what circumstances? This solution requires the rewrite of labor law and the charter of the NLRB. As I said, this is really a thought experiment.

"...increase penalties for illegal anti-union activity...": If put on the books, the penalty provisions would only be assessed after a protracted, multi-year battle to determine if a charge of unfair labor practices is sustained. Then the appeals on the penalties will go on for many years afterward. What you are talking about is summary judgment and summary levying of penalties. The NLRB has no such plenary or summary powers. If it did, there is nothing to prevent the same protracted series of appeals. Octuple the penalties if you want, assuming you could pass the legislation, it won't make a bit of difference.

"...require the election to be held very soon after union organizers have collected enough signatures to warrant a vote...": If union organizers are having a hell of a time collecting signatures today, why would it be any easier tomorrow. Signatures and procedures can be challenged, and certifications can challenged and appealed. There is virtually no downside for management by breaking and flaunting the law.

All of this is an exercise in thought experiments and moot court debate. Nothing will happen to reinvigorate progressive labor law, policy, and practices unless and until the individual employee knows that his job will not be in certain jeopardy if he chooses to organize.

Mandates, larger penalties, and quick elections after collecting signatures do not mean diddly squat if you are talking about leveling the playing field. Labor needs a big, big boost in leverage that can survive anything management throws at it. The NLRB is a joke. What we call labor law is a misnomer. It's management law. Again, this is not hyperbole.

For Peter K.,

"Businesses exist for one purpose: to make a profit.":

NO! Businesses have more than one purpose. Yes, they should make a profit. Business do not exist apart from the values and aspirations of our society. They also have the purpose of contributing to the social economy. Another is providing stability in our political and societal framework. This is why many countries require employers to give sufficient notice of closings, along with substantial payments, so that communities can make a transition from the loss of many jobs. Businesses, like our families, schools, and faith communities, are fundamental centers of transmitting values to citizens, and being models of those same values. The values are all the same: don't steal, be fair, don't lie, don't exploit other people, share your abundance with those in need, bring others along with you as you prosper and succeed, protect and restore our planet. Work is important in our society as a source of satisfaction and joy. Businesses should NOT be allowed to amass their profits in a way that concentrates wealth, unnaturally, in the hands of a few. Corporate personhood should be abolished.

Norman, a lot of things are potentially subject to court debates. The Lily Ledbetter Fair Pay Act was one - companies often do challenge the claim that they engage in discrimination. You can't say that election mandates and stricter enforcement of labor law don't matter unless you're also willing to argue that equal pay laws don't matter.

Alon Levy,

Hurray for LLFPA! That was a good one. The House, Senate, and the President got it right, lickity split.

One of the major differences with management-labor relationships and something like employment discrimination is the role of the Justice department and related EEOC actions. The Xerox case, not too many years ago, is a case in point, as well as being typical of discrimination cases against large corporations. Yes, on the surface it looks like it is simply a long drawn out litigation process that works exclusively for management. Looks are deceiving, though. In the Xerox case, and many others, the corporation quickly takes the position that it treats everyone fairly and there is no discrimination. Quietly, the attorneys gather all the stats and histories (prepared for counsel only, so they can't be subpoenaed) and come to the conclusion that they are in deep shit, and could be liable for hundreds of millions of dollars. The standard tactic is to stall and maintain a position that they do not discriminate, while the company starts fixing the problem. They start promoting people, sending them for training, moving up pay raises, bringing more minorities into management, setting up a review and goals process, etc, etc. Essentially, they are setting the record straight and trying to make up for lost time. After a time the Feds take them to trial. Eventually, the company reaches an agreement with the Feds to do all the right things. And guess what. The company agrees to do all the things that they now have in place and working. I know about this process because I've seen it from the inside.

The problem with the NLRB, and labor law in general, is that there is no analog to the process, as described for the Xerox case, that begins down a path that ends in a just settlement and continuing programs to make sure it doesn't happen again. Justice delayed IS NOT justice denied in the Xerox case. For labor's right to organize, or an employee seeking redress for unfair treatment, justice delayed IS justice denied.

I've been trying to make the point that the NLRB and labor law, in general, have evolved to where it is virtually impossible for many employees to even think about attempting to organize. Look at the Lily Ledbetter case. The U.S. Supreme Court told her, and countless others, "tough shit." Today, when an employee gets sacked for disclosing the slightest sympathy for unions, the message is exactly the same, "tough shit." Lily Ledbetter got her Fair Pay Act. Labor needs the EFCA, or they don't have a chance.

What you say may have been true for Xerox, but many other companies keep engaging in discrimination - for example, Wal-Mart. I think there have been lawsuits against Wal-Mart for more than a decade, but the company still behaves exactly the same way as it used to. (Wal-Mart is also one of the companies where card check will be the least effective - the way it's portrayed in The High Cost of Low Prices, it's too good at firing union sympathizers before they can get a majority.)

Walmart was ordered, recently, to pay hundreds of millions of dollars in back pay to their employees. Again, discrimination and wages are handled differently, by different enforcement agencies and laws. Union organizing and labor relations are, for all intents and purposes, a horse of another color.

At present, is there a more effective way of organizing than the provisions of EFCA? This is not a rhetorical question.

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