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Card Check is More Democratic than NLRB Elections

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So some folks will say, hey labor law sounds good, but don't the business lobbies have a point that the Employee Free Choice Act (EFCA) proposed by labor and its supporters will undermine democracy by eliminating the secret ballot. I'll have a post soon about how the secret ballot will be fine and more used in workplaces if EFCA passes, but let's take the basic corporate argument headon. Under EFCA, instead of holding an election with a secret ballot, workers can also choose a union alternatively by a majority of workers signing cards asking to have their union recognized.

Horrors, the business lobby cries, weeping for the lost democratic voice of their workers (as they threaten to fire anyone who supports the union during the election), but here's the thing-- an NLRB election recognizes the union if a majority of THOSE VOTING support the union, while the card check option requires support from a majority of ALL WORKERS IN THAT COMPANY OR VOTING UNIT.  So the latter option is harder and actually is more guaranteed to reflect the will of the workers.  Follow below the fold to imagine how this would play out in a federal Presidential election.

Think of it this way, according to numbers at CNN.com, Obama won a solid victory with 66,495,305 votes across the country. But that was out of 213,005,467 total eligible voters, so Obama received only 31.2% of those who could vote.

Let's say their was a "card check" option for the Presidency. First, instead of having the government set up polling places in every community and manage an election, just to get those original 66 million plus votes, the Obama campaign would have had to independently pay to send cards to each voter and do far more extensive "get out the vote" work to get those cards returned. No depending on voters just to show up at the polls in safe states and districts. Every voter would require individual outreach.

So just duplicating the exact numbers Obama got would be more daunting under a card check Presidential system. But getting those same numbers would still leave the campaign short. On top of the 66 million plus votes he received, Obama would need an additional 40,007,429 legal voters (213,005,467 divided by 2 minus Obama's election total) signing cards supporting him for President. Which means Obama would have to reach deep into the mass of non-voters-- whether apathetic, disenchanted, dispirited Republicans, or whatever -- to get those last 40 million supporters. The resources required for that outreach would be a level truly daunting, and even the Obama machine is grateful that the government provides the easier route of elections. But I think unquestionably, a President who could demonstrate support from an absolute majority of all eligible voters, having 106,502,734 voters state their support for them, would have a clear democratic mandate.

The fact that unions would even want the option of card check is just a testament to how awful and unfair the NLRB election system has become (a topic for another post).

What about "coercion of workers? Yes, business lobbies claim that unions want the option so they can "coerce" voters to sign pro-union cards. Here's a question, since such coercion is clearly illegal under present law and unions have used card check authorized under some state laws for public workers and in negotiated cases with some employers, where is the list of convicted union organizers illegally coercing workers to sign cards? The Bush administration would have been happy to prosecute yet there are no examples. The union "coercion" argument is a lie and red herring to justify denying labor rights just as the right's cries of "voter fraud" is their screen for voter disenfranchisement.

The secret ballot is a useful institution and workers will retain that right under EFCA, since 30% of workers in a worksite can always demand an election and as long as a majority of workers refuse to sign cards authorizing the union, they hold onto a right to have an election instead. But where a majority of workers recognize that they want a union and want to avoid the employer threats and coercion that accompany an NLRB election, the right to a card check option should clearly exist and is the best way to reflect the real democratic will of workers.



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I'm generally ignorant about labor law, so I appreciate this post, but there's something I don't understand: how can the employer coerce employees to vote a particular way in a secret election? (Other than the coercion that if a union is formed, the store will be closed, etc., which would still be able to happen, I assume, regardless of how the union is formed.)

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Very fair question Ben. It begins with legalized "predictions" (which are really threats) that employers can make in "captive audience" speeches on paid company time and on company premises (a right the unions do not have) that if the union comes in the company will be forced to close. It continues with legal one-on-one "interviews" in the supervisor's or chief honcho's office which are, in fact, legalized interrogations to guage one's union sentiment. It continues with targeted discharges of union proponents whose reinstatement under current law, if it ever occurs, will not happen for years down the road. And it results in nothing less than garden variety, plantation-like intimidation which eliminates any real possibility that the employees will accept what they see as the inevitable dangerous consequences of bringing the union in. It's a time-tested approach that Nathan has undoubtedly witnessed, and I sure as heck have witnessed, over and over and over again.

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Although not familiar with all of the details you mentioned, that's the kind of coercion I imagined. However, how does card check prevent it? That's what I'm not getting. It seems that, if anything, card check would make it easier for that type of coercion to happen, although presumably if that was the case, businesses wouldn't be fighting card checks. (I.e., I know I'm missing something here, but I'm not sure what it is.)

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Or to put it more bluntly-- think of the workplace as East Germany, which held plenty of secret ballot elections. With the secret police interviewing everyone about what their friends are doing, it's pretty easy for the employer to count votes target those who are leaning in support of the union. Fire a few of those and the message gets out that the employer will figure out if you are pro-union and get rid of you too. Sure, people could be pro-union, never talk to any friends about their sympathies, vote for the union, and the employer never be the wiser -- but in the real world people get scared and know the best way to avoid retaliation is to vote no on the union, so the employer harassment will end.

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But suppose the union loses a card check election. Then every pro-union voter has a bulls-eye painted on them for the rest of their career. Not questioning the fact that the union's haven't balanced their interests; they wouldn't ask for this if they didn't think they needed it. But is it really going to work in practice?

I guess the question I'm asking is that if under card check a union is only going to get "one shot" at the company, and that's it. Once the employer gets its hands on the 'pro' votes, those careers are over.

Or have I misunderstood this?

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So let's see, when management asks to look at the names of people signing up for the union, and proof of signature, that will protect workers how?

Jeebus people, quit looking at what could be, to the exclusion of what is.

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But under card check, the employer doesn't look at the names until the tooth paste is out of the tube and the union has attained majority status and can represent workers against the kind of retaliation and harassment and intimidation described above. By the time you get to the election under current law, the employees have been subjected to the plantation or East German system without union representation for a month at a minimum and often beyond that.

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Meant as a follow-up reply to Ben above as well, who made the same point as scrappy ole' shooter just did, albeit with a little more grace!

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OK, so I can see how it's not worse, and I might have an inkling of how it's better, but I'm not 100% sure. Is it because the card checks start to happen before the employer is even aware the process is underway, giving them less time to mount a counter-offensive? Is it because it helps level the playing field by giving the union the ability to recruit more aggressively? (I'm not sure what the union is and isn't allowed to do there.)

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the point i made in my post is not that card check is bad in principle or that the bosses are in any way concerned about their workers.

rather it is pointing out the fact that the bosses have a very attractive argument that taps into how we think of ourselves and elections and forces us to explain why they're the actual stalinists. as they say, if you're explaining you're losing.

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Your argument is weak. I'm a left of center person who has managed non-profit nursing homes, and worked cooperatively with some unions, and had hostile relations with others (who protected employees who abused patients).

I'm all for increased unionization as I think it would benefit the country to shift the power towards labor. But there must be a better way. I've seen unions coerce - there's nothing intrinsically good about unions - they are just as prone to dirty tricks as companies.

There's a reason that unions favor the cards and that's because it's very easy to convince people to sign a card when they aren't hearing a counter argument. It's the same reason a grand jury always returns an indictment - when you only hear one argument, you are easily convinced.

Unions support the employee free choice act as the easiest way to organize. With Democrats coming to power, there's going to be a more favorable NLRB, so no reason to fear secret ballot elections. The card check method will encourage underhanded behavior to get cards signed - intimidation, peer pressure, and a host of other ugly methods to persuade, along with legitimate ones.

Let's use the US election again as an analogy. How would you feel if your vote wasn't secret? How about if you were an Obama supporter in a rural Kentucky town?

Power corrupts. Keep the right to a secret ballot.

Pablo

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"Let's use the US election again as an analogy".

You mean like the primary caucus system? And, if you want to use the secret ballot electoral process as an analogy, don't you have to eliminate the kinds of impediments to having a free and fair elecion that have been discussed above?

I don't mean to be snarky and it is very difficult to defend against sound arguments in favor of secret ballot elections. Those sound arguments do not include, respectfully, anectdotal ditties from nursing home employers (who do G-d's work but only with the labor of low-paid workers performing thankless tasks in a difficult environment) who have had to deal with unions charged under federal law with fairly representing each and every employee in the bargaining unit, including those who do bad things as you describe.

Nathan, the handwriting is on the wall. Labor delivered in this election, big time, and was promised EFCA by President-Elect Obama and by Democrats all the way down the ticket. But mark my words, it will not pass, at least not in its current form. That's the bottom-line. These are the comments of good and well-intentioned progressive people. It is not the Business Roundtable opining in your threads.

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I am generally pro-labor, and a member of the union at my current employer. However, I was a postdoc at the University of California, Berkeley when the UAW ran a card check campaign several years ago. The organizer who came to visit me several times told flat-out lies about the nature of the process: she told me that the card was only a petition to hold an election, not itself a vote. My friends and colleagues reported similar conversations. I was suspicious, and I did not sign the card, but apparently more than 50% did ... the UAW was finally recognized last week, after lots of legal maneuvering.

Consequently, I am suspicious of these card check elections. Unions should be voluntary membership organizations.

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I was also at UCB during the first drive and had the same experience (although I'm ashamed to admit I signed the card to get them out of my office; incidentally, soliciting for card signatures during work time is also illegal), so I can corroborate. It was very obvious that the UAW was in this solely as a recruitment drive, because there was little that was union-negotiable, and what was wasn't likely to be improved beyond its already-good state. There was no support for the union among postdocs that I ever saw, and the leaders actively refused to hold any kind of public discussion. Thousands of people, including myself, withdrew their signatures, but even though the union claimed they were only just shy of a majority, they withdrew it fully instead of holding an election as would be the normal procedure. Why? Because it would have failed catastrophically. Now I'm pissed off that these bastards have shoved it through on the second time around.

The real problem is that the union leaders are just like the top corporate managers who, instead of working for the company, found it better to give themselves huge salaries and bonuses regardless of their performance. Likewise, the big unions found that as long as they have a captive audience to pay membership fees, they don't really need to do much to actually help workers.

Let's face it - the big unions like UAW and SEIU are mostly protecting their own slice of the pie, and are working together with the management to screw over the workers and drive the economy into the ground.

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OK Pablo, lets continue with the U.S. election analogy.

How would you feel if, after a majority of your fellow citizens voted for Obama, Bush stayed on as President?

More fundamentally, assume that you are right, and that the passage of the EFCA actually leads to increased coercion or underhanded methods designed to get employees to sign a union card. ( Of course, in order to do so, you must ignore the evidence from many Canadian jurisdictions which have had card check for years with no problems).

The question remains, so what? All a certification gets you is the ability of a professional bargaining agent to negotiate the terms and conditions of employment for you and your fellow employees. The, quite frankly, bizarre belief that this needs to be subject to a secret ballot is simply an outcome of blatantly anti-union propaganda which is endemic in the US political system. You should no more need a secret ballot to join an union than you would need a secret ballot to join a health club.

When the workers get to vote on who runs the company, then maybe we can talk about a secret ballot. When all we are talking about is appointing someone to bargain for you, no ballot is necessary.

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I’ve sat at the negotiating table, as a Union Teamster.
I’ve seen both sides, and the Union has busted an employer’s bottom line.
Seniority has some ugly sides.

I was raised to believe that you work hard, for your employer, as hard as you would as if it were your business.
God knows it’s easer to show up for work, than to have to be the one assuring the payroll is met, the taxes paid, the social issues of employee relations and missed work.

I’ve seen the laziest of the card-carrying employees; hold the company’s hostage, as it relates to overtime or other issues of performance.
How seniority beats up on fellow workers, who put the needs of the company and it’s very survival ahead of some high-minded Union Rep or shop steward.
Cutting their own throats, to humble the employers, acting as if they were in control of how the trucks will be loaded, and what routes will be run, and how. Usurping the company’s appointed salaried management team. Imposing the Union stewards misguided attempts at logistics

The old saying at the warehouse door at times was appropriate. “I hoped you bathed today, because I know I’m going to have to kiss your Arse, to get some work done today”

I’ve seen both sides,
In construction, I had an employer who was a decent man, who lost many a bid for jobs, because he, doing the right thing for his employees, provided health and welfare benefits.
The Non Union competition offering a dollar more an hour with no benefits, beating the decent man out of work, who then had to become, Non union to get the job.

The good employer would tell me in the 70’s, we needed Universal Healthcare; in that way, employers were playing on a level field.
We didn’t need Unions to tell us that, we needed an electorate, who would pay attention to the issues, voting or booting out of office, those who worked against labor issues.
Mondale lost to the Non-Union Reagan, why is that?

Workers have become complacent. I can’t save a man bent on cutting his own throat.

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I would add, The American worker bought at Non Union stores, he bought Non union shirts and shoes, he bought foreign cars.

Do we need a Union to tell us, that American workers reaped what they sowed?

You damn right it's called protectionism, who else is going to protect YOU, the Government?

Idiots, thinking they could buy cheap goods and then wonder why they had to work cheaper with no benefits. The consumer thinking he was immune to the pressure.

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I am not sure how a Teamster who sat at the table could blame his union brothers and sisters for managements incompentence.

I have sat at four contracts for the UAW and management has the right to run its business including terminating the alleged employees as you have stated. (And, when management does its job, they have terminated people. Some have been brought back, but most remain fired.)

So, what happens? Management does little to nothing BUT COMPLAIN how the union doesn't allow them to do their job. In my 16 years, the union never stopped management from doing their job--management did not want to do their job. They just wanted to BLAME THE UNION. It was all a propaganda war against the union.

That was managements role. One time, after the manager in my area complained about employee X for the upteenth time, my International UAW rep., said, 'OK, I'll make a deal with you. You can fire that worker and we won't fight it.' That made the manager very happy. The International rep went on further to say, 'But, you have to fire his supervisor for not doing his job for the past 5 years.'

The manager's face dropped, she got pissed off and kicked us out of her office. To this day that manager complains about employee X and has the same supervisor!

When management makes bad decisions, it is the Union that has to live with it.

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I lived the terror, conducted by the Union Stewards.
It was called jealousy.
My advancement within any organization is due to my work ethic.

Unions seem to go to the lowest denominator.
When I was a laborer I was approached by the Business agent and told to slow down, because I made the others look bad.
I'll tell you what looks bad, one laborer to hold the light bulb and four more to turn the ladder. Then some wonder why, companies got rid of the Unions. Or four with one shovel.
To listen to the laziest scumbags, who relied on seniority to shove the crap jobs down to the new hires?
When I became a Teamster, and went from order filler to driver and machine operator. Oh no! I shouldn’t pursue educating myself to advance, unless I got the blessing from the DON, Steward

So when your new, you learn to eat crow, but then that becomes an issue, with the Steward, because when you don't complain, and the company recognizes that I don't cry about making my 15.00 dollars and hour, and if you want me to be the janitor just give me my 15.00 dollars an hour. You want 8 hours or ten, you want me to sweep or drive, just make sure the check is good. If it’s not safe, I’m out of here.

Then get the heat, because I didn't participate or go along with the Stewards intentions for his personal advancement within the company, and those his followers.
Trying to screw the company, every chance they got, of course not visibly, never getting caught.
Having to keep my mouth shut, because I'm one of the good ol’ boys and should I ever resist or show any tendency, to show disapproval of this type of misconduct; then look out for the setup and working conditions get worse, not by the wicked old nasty employer, but from my Union Brothers, maybe a pallet accidentally falls, Oops sorry to hear.

But I laughed all the way to the bank, making my 15.00 per hour. Without having to kiss the Unions behind or my boss, I just did my job and a good one at that.
From the steward on up the chain, to those controlling A book or C book, patron system or nepotism in the UNION.

Some Unions need to clean up their acts, and as long as employers have a surplus of labor.
It is not mismanagement by the company, it’s the fraud to think Union Workers are better than anyone else, WANTING to work, not just somebody looking for a paycheck.

IF YOU'VE GOT SOMETHING BETTER TO DO, YOU BETTER GO DO IT.

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Sorry, ain't buying it. This is the same Right to Work crap I hear all the time from alleged union supporters (who really are anti-union).


First, companies and management since 1981 (PATCO firings and all out war on the labor movement) have had all the power. Just because you are crying about your situation (if it is true or not) does not translate into unions are more powerful than companies and are pulling them down. When I read that, it's as if I am reading the anti-labor, anti-union Right to Work websites that the "strong unions are harming the poor companies"--give me a break with this BS!!!

Second, it is an indictment of your management if they cannot manage. If they agreed to a bad contract, then blame them for doing so! If you don't like it, you can always leave. Just because you are in a union shop, doesn't mean you can't find another job. What were you an indentured servant?

Third, companies and management make all the decisions about their work and their products. Union members have no say. For example, when the UAW informed Ford they should mix up their product line in the early 2000's, Ford management said "no". What happened? We've seen it, peoples attitudes have drastically changed and they want smaller, more efficient vehicles. How was the union affected? People have to leave, while management gets huge bonuses.

Tell me again about how the union is screwing companies?

So, the union hasn't done anything good? Like create the middle class, get social security, medicare, pensions, etc? Living wages, holidays, vacations? Healthcare, paid sick leave, safe working conditions? Weekends, 40 hour work week, paid maternity leave, paid overtime? Safe working conditions?

Are you against the Union in principle or practice or are you just complaining about a certain location? If it is the latter, try to improve it.

If it is the former, then be prepared to live in a third world country.

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Thank you. Excellent post.

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Card check has some disadvantages.
1. Employees who don't learn about the card-drive before the union collects a majority of cards will not have an opportunity to attempt to persuade their coworkers to vote against the union or for a different union. Those employees will nevertheless be bound by the majority's decision.

2. In some cases, some employees might sign cards out of peer pressure (not rising to the level of unlawful coercion), even though they would have voted against the union in a secret-ballot election free from any employer coercion.

3. It is highly unlikely that no cards will ever be coercively obtained. It is highly unlikely that all coercion will be brought to the NLRB's attention.

4. Some law-abiding employers will lose an opportunity to lawfully explain why they think employees should not unionize.

A better approach for promoting employee free choice might be to hold elections much faster and to impose harsh monetary penalties on parties who coerce employees.

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With regard to "card check disadvantages", we need to be familiarized with the typical practices of the huge and growing union-busting industry. There has been little mention of these law firms who routinely train low level supervisors to accurately ascertain the union sentiments of the employees and provide them with the "talking points" that will influence employees to vote "no". They advise management of the kinds of unfair labor practices that are easily committed with little or no fear of any meaningful penalties but with very meaningful results in coercing employees.
Also, having been involved in card-check campaigns (where the employer agreed), the card checks were performed by disinterested third parties such as clergy or retired judges, etc. The employer never saw the cards.
Finally, yes, unions are imperfect organizations, just like any other democracy. The answer to improving them lies with action by and on behalf of the membership they represent.

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Older Than Boomers --
Speedy elections and harsh fines would reduce employer coercion as much as would card check, and without card check's significant disadvantages.

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I disagree that more prompt elections and harsher fines would reduce employer coercion. As long as there are 'checks and balances' in the process that allow employers to appeal and delay (all the while harassing and firing employees who voted yes), there will be a need for the fastest process possible, which is the card check.
Anyone who has first hand experience with the current Union-busting tactics of Walmart will tell you that big corporations will pay any price, break any law, and accept any fine in order to stop Unionization. Giving them a small window of opportunity is giving them all they need to do their dirty work.

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Heck with harsher fines. Throw the goons in jail. When a manager fires someone for being an organizer, how is that any less stealing from them than, say, marking up hours or expenses that were never incurred? Yet the one done by management is always a civil offense, while the one done by employees is criminal.

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Bill --

Currently, there are no fines. Your use of the phrase "harsher fines" incorrectly implies otherwise. A new fine of $20,000 and triple backpay for each instance of coercion would deter employers. In contrast, card check is not effective at reducing employer coercion. Some employers will learn about the card-drive before it ends and will coerce employees. Plus, card-check risks an increase in coercion because it requires employees to express to others whether they support the union. And, card-check entails the other problems noted above.

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Labor Law:

Can you explain how $20 grand and 3x backpay would deter Walmart?

They spend (according to reliable sources) $100 million dollars per annum to keep Unions out of their company.

I realize we're on the same side, I just don't know if you fully grasp the weight of the fact that people who are attempting to join a Union still need their jobs while the legal technicalities of Union formation are hashed out. As I said, give a company like Walmart a small opening, and they'll fit a platoon of Union-busting lawyers through it.

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We can raise the ceiling on fines as high as you like to take account of deep-pocketed employers. That said, I think that the penalties contained in the EFCA would do a good job of deterring most employers. If they do not, and if an employer repeatedly violates the Act, the Board can institute contempt proceedings. In contempt proceedings, much steeper fines and jail time are available.

The real question for me is how much more employer coercion card-check would eliminate than would speedy elections (held 7 to 14 days after petition) coupled with a steep fine. I doubt that it would be that much, and I think that any marginal reduction in employer coercion is outweighed by card check's burdens.

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LLB:

you may be right, but how do you propose to get such speedy elections? There are always going to be grounds for a company to file to prevent a speedy election -- challenging the petition, alleging improprieties, challenging which workers should be allowed to vote as potential union members and so forth.

Why don't we try card check, and if we can reform the NLRB to the point where it can supervise elections in a timely and competent fashion, we can move over to that. Otherwise you pretty much end up with the current system out into the indefinite future.

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Paul -- You can check out my ideas for reform at http://www.traditionallaborlaw.blogspot.com

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To gdunn45
The proofs in the pudding; Union membership is down, because Unions let the members down, or was it the members let the Unions down.

You write "then be prepared to live in a third world country.

Is Union membership any different than third world country politics? Where if you’re a strong member you go the local hall, sign up on the board, and you go out the backdoor to the plum jobs. If you’re just Joe the cardholder, you hope you go out.
Party loyalty has advantages for party supporters, and if some crumbs should fall, it’s good, see how well it works. Is this same in Russia, party loyalists get the plums, and the rest get the crumbs?

You write: like create the middle class.
How much of the middle class was created because of government spending? Credit relaxation? So to say Unions solely created the middle class is a stretch.
Social Security, was a response by the government, to address a need identified by the Great Depression When initially signed into law by President Franklin D. Roosevelt in 1935 as part of his New Deal, the term Social Security covered unemployment insurance as well. Did Union members help pave the way, probably, but not solely.
Would it be as true to say pressure was mounted on elected officials who then voted in order to maintain their seats.

It is the members of our community who decided they wanted flextime, 40-hour workweeks no longer work for family needs.
Of course you’ll probably say they know not what’s in their best interest but those are the facts and in the opinion of most they seem to be in the majority.
So is the Union supposed to convince the majority they’re stupid? Oh! that will increase membership.

You then proceed to mention paid holidays paid sick leave, paid maternity leave, paid overtime. Then you proceed to question my comment about Companies getting screwed.

What? Tell me how imposing paid no production, helps the companies bottom line? Costs that are passed on to the consumers, who now must go and get more from their employers, to cover the cost of goods.
Inflation during the heyday of strong Unions during Nixon and Ford, hurt the middle class, and the poor.

Did the UAW contribute to inflation? With it’s costly benefit package, setting a pattern of perpetual inflation?

If you want the perks, someone’s going to pay, but of course the UAW didn’t want pay cuts. Eventually all will be forced to learn that benefits are a cost.

Is there a role for Unions? Yes; I recognize the strength in Unions, it’s ability to carry clout, much like AARP,
The voices of the people some who are not Union members, will eventually force Universal healthcare.

If the people want change, it doesn’t have to come from Unions, it comes from involvement and votes.

Paying an intermediary to convince Congress to address worker rights is a very powerful incentive.
Giving money in the form of dues, that in turn promotes candidates, cannot deliver any promise, if the workers decide to stay home on Election Day.

Unions were strong, but they overplayed their hand. Manufacturing is gone; industry is gone, because of the costs of doing business in America.

If you have somewhere better to go, you better go, (and industry did) and it’s the same with the workers. If you’ve got something better to do you better go do it.
No one forces people to work in unsafe conditions, no one forces you to live in a town. When people understand that when the employer can’t find workers, at the wages he offers, he’ll either raise the wages to attract, or he’s out of business.
Where are the steel plants, where’s the car companies.

Of course there’s always the Monday morning quarterbacks, who knew

Detroit shoulda, coulda, woulda.

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