What's Left Without Card Check?
David Kurtz on the front page asks "If you take card check out of EFCA, what's left?"
Actually, quite a lot. Let's rename the bill, the "Prevention of Illegal Firings Act" (PIFA) and it's still important labor law reform. The New York Times story David referred to cited a proposed compromise, where
majority signup provisions would be dropped, but elections would be
held within five days, employees could not be forced into mandatory
meetings, and unions could campaign on company property during the
election period. So what's that add up to in a typical election campaign (see below the fold)
- Union secretly collects cards, announces them and calls a snap
election for five days later.
- Employers are banned from coercing employees into mandatory
meetings and, even better, unions get access to employer property to easily rebut
employer arguments and even participate in voluntary meetings held to discuss
unionization.
- If anyone was fired over the next five days of the election, any
court would wonder if it's not an anti-union firing, what was so terrible that
the employer couldn't wait five days to deliver the bad news--so employer loses
in court and owes three times lost wages to the employee, so any fired employee
gets a very lucrative vacation if they get fired. The
company would also pay a penalty to the government of $20,000 per employee
illegally effected.
- In the case of any dramatic mass firing or other foul play by employer, new rights allow the union to seek an immediate court injunction to reverse employer actions and seek quicker relief than traditional slow NLRB procedures
- With recognition, employers would have to negotiate a first contract or see an independent arbitrator impose a first contract - a strong incentive to the employer to bargain in good faith for a contract he or she can live with.
This is worlds away from the present situation where elections
take well over a month at minimum and often far longer, while mandatory
meetings and firings destroy union support and any penalties come in months and
even years later for employer actions - and the costs to the employer from
those penalties are so minimal that they act as no deterrence.
If anyone wants a frame for this new labor law, it's simple--cracking
down on illegal corporate behavior during union elections. The bill becomes a "tough on crime" bill, pure and simple. It's not everything labor wants and it's a dramatic compromise to placate conservative Democrats, but it would be a major improvement for workers rights if it passed in this form.
But simply because there are other critical issues to be gained with EFCA, is no reason to abandon card check. Compromise nowhere. Labor has been getting brutally pummeled for 8 years. Labor deserves every aspect of EFCA, card check and all. There's no need to discuss any compromise. None were made during the Bush Regime, adn miners unneessarily lost their lives.
July 17, 2009 12:04 PM | Reply | Permalink
"Compromise nowhere"-- even if that means getting nothing. Don't ever compromise without something in return-- whether alternative union protections (as in the proposed ban on mandatory meetings and union access) and votes (Arkansas David Pryor here) -- but compromise is almost always needed.
The problem is when politicians compromise without getting anything in exchange, as when the Dems water down proposals and still don't get additional votes. That's stupid-- but if this compromise stops a filibuster, then that's a useful compromise.
July 17, 2009 12:53 PM | Reply | Permalink
Don't ever compromise, period. Reason:
Even if you work-up a good alternative to the provision being opposed, the perennial anti-Union forces do not want what is "good". They're merely looking to defeat the original proposal... e.g., Card Check... not because Card Check per se is heinous in their eyes, but because it's a way for the Union mission to be defeated totally. If they can blow up any keystone of real reform, like that, they can defeat any reform.
Now, come back to them with your eyes on the prize, and another proposal that has the same effective result of getting the overall job done, and they'll either oppose that, or something else; it's whack-a-mole. They do not want the overall job done.
Their nemesis is never one individual provision of any kind, like Card Check. It's the war, not the skirmish. They're not in this to make Unionization work at all, even by alternative means.
July 20, 2009 3:38 PM | Reply | Permalink
I still think the "compromise" bill goes too far ($20,000.00 is a lot for many businesses), but it isn't really a bad bill. It's a nice "swing back" from some unfriendly developments, but still a reasonable way for labor law to work, preserving the secret ballot rights of employees (which protect thm from unions as well as employers).
July 17, 2009 5:14 PM | Reply | Permalink
Once again: EFCA DOES NOT TAKE ANY SECRET BALLOT RIGHTS AWAY FROM EMPLOYEES! Secret ballot votes are not mandated under current law, either. Under EFCA, employees can ask for a secret ballot vote just as they can now. The only thing that changes is that EFCA does not allow the employer to mandate a secret ballot vote.
It is a distressing measure of just how effective the right's propaganda campaign has been that so many people here have swallowed that "Preserve the secret ballot!" meme.
July 20, 2009 2:15 PM | Reply | Permalink
Employees could "ask" for one, but they never would. Why would a union risk losing a secret ballot vote when it can intimidate and coerce employees into carrying a little card around?
July 20, 2009 3:10 PM | Reply | Permalink
If 20 grand is too much, then don't fire your employees illegally!!! Case closed.
July 20, 2009 2:20 PM | Reply | Permalink
Just as it is well nigh impossible to effectively make the nuanced judgment calls of tactics on the ground for movement activists (as in the case of some who wrote angry critiques of a Code Pink action in Kansas City last year where they (gasp!) briefly closed a gas station), it is difficult to really assess effectively the precise degree to which one must let out or bring in the sails in passing a bill through Congress.
Let us assume arguendo that there was no way (given the immense untrustworthiness of people like Arlen Specter, aptly noted in the overly trashed -- including by some who write regularly for TPM Cafe -- movie "JFK") that card check was going to withstand a GOP-with-DINO-complicity filibuster. OK then, what CAN pass? If a major step forward in labor legislation can be taken effectively this way, I would consider it foolish to avoid it. (I see that as INHERENTLY different from many of the issues with the energy bill, which taken as a whole may indeed, as some authentic progressives have knowledgeably suggested, be WORSE than nothing, and much worse than passing the best parts of the bill while scrapping cap n trade & some of the other doozies, like junking EPA's power to regulate CO2. )
See: http://www.tikkun.org/tikkundaily/2009/07/13/obamas-climate-bill-may-make-things-worse/
OK, so we can take three steps forward rather than five. Sure five WOULD be better if it could pass, but we are assuming it can't. I know that's a big assumption, but it has the aroma of truth. If that's true, then aren't there a zillion other issues (Taft 14B and such) that can also be reformed in labor's favor? It would seem to me that after passing EFCA minus the card check, another package of labor legislation ought to be put forward, even if it merely has the result of a GOP filibuster. Then maybe another partial victory can be one, and several partial victories could seriously add up.
At some point, I think it politically WISE to force a GOP filibuster on some popular issues in a slump (tho card check itself might not be the one) to drive home to voters, especially in an election year, just who represents what interests in DC. It's like FDR once requesting his aides to 'bring him some bills to veto'. Sometimes you have to push conflict to move things forward, though better after you have a bunch of significant positive achievements under your belt
Just my arrogant opinion
July 17, 2009 9:02 PM | Reply | Permalink
Nathan,
I enjoy your work (refreshing to see people still care) and agree with you that labor law reform, even without card check, is significant.
But I think you have gotten a little ahead of yourself here: no such deal along the lines you have suggested exists. Yes, the agreement provides for an expedited election but rules on captive meetings, mass layoffs, and employer sanctions are not decided on. Rather, they are being considered, and no such legislation exists. The bill that was circulating with cosponsors is no more.
Further, the arbitration provision, arguably the most crucial, is equally troublesome. The business community will not tolerate it. The "card check" campaign was merely a very simple rallying tool. As you know, they have no interest in workplace democracy (the irony), and this was their opening salvo to killing the bill.
I will agree the ultimate reality was that an alteration of the "card check" provision was inevitable - it was too easy a target and too few in Congress either understand its significance or care to.
But, I would argue that - contrary to reports that labor used "card check" as a proxy to get the bill passed - the business community will stay uniform, especially on arbitration. The point being we are a long way from declaring victory, and until any details are actually hammered out, there is no legislative or compromise victory to speak of.
Finally, do not underestimate the cowardice of the Democratic party (I doubt you do). Despite the money and ground troops labor provides for their victories, throughout the EFCA wrangling they have been uninspiring, to be polite (trust me). I suggest interested parties pay particular attention to the arbitration clause - it may go the way of the dodo bird. And that spells the end of building the labor movement.
July 17, 2009 9:53 PM | Reply | Permalink
In an alternative universe, the front page of today's NYT could have said:
"Labor bill advances as compromise picks up key Senate votes;
GOP hopes for filibuster fade; proposed law retains binding arbitration and stiff penalties for illegal firings."
Instead, Steve Greenhouse -- America's last labor reporter -- paints what could be a big win as a another defeat for unions.
The next ruckus will be over whether binding arbitration stays in the bill; business hates this as much if not more than the card check provision.
How this gets spun is important, because the labor movement can't grow unless workers make a decision to join. Right now, there is a mostly accurate perception that union organizing is NSFW -- if you do it, your boss will punish you. (And most likely get away with it, even tho it's illegal to punish people who exercise their workplace rights.)
It would really, really help matters if Barack Obama signs a bill that makes the law better than it is now -- even by a little bit -- and says, "Yes you can join a union. And if your employer goes after you for doing it... I'll go after them."
Obama by himself can't organize workplaces; workers have to make their own decisions. But presidents can and do change perceptions. If people believe it's safe to organize, there is a greater chance they will act on that belief.
July 18, 2009 12:14 AM | Reply | Permalink
Binding arbitration removes the union member's right to vote on a contract. What is it with this hostility to workers actually voting?
July 18, 2009 6:36 PM | Reply | Permalink
What's with it with anti-union folks making up stories that bills eliminate any right to vote.
If the union and management come up with a contract within a few months, the members of course get to vote on the contract. Binding arbitration only comes up if no contract gets negotiated that the members even get to vote on BECAUSE MANAGEMENT REFUSES TO NEGOTIATE.
In fact, the point of binding arbitration is not to have federal bureaucrats decide contracts but to give management incentive to negotiate a contract themselves. You can almost guarantee that if binding arbitration is enacted, an extremely tiny percentage of contracts will ever use the mechanism. But it's existence will end the practice of employers refusing to even try to negotiate a contract.
July 18, 2009 9:06 PM | Reply | Permalink
Don't be silly. Binding arbitration means a contract that no worker gets to vote on. Period. If 100% of the workers don't like the binding arb contract, tough cookies, because they are stuck with it. So much for workplace democracy.
Do the workers even get to vote on entering binding arb? No. So much for workplace democracy.
July 19, 2009 12:23 AM | Reply | Permalink
If 100% of the workers don't like the binding arb contract, tough cookies, because they are stuck with it. So much for workplace democracy.
First, nothing in EFCA prevents partial agreements - where the union and company negotiators come up with a collective bargaining agreement with agreement on most issues, i.e., those not involving pay or disciplinary procedures. Maybe pay and disciplinary procedures go to arbitration, but maybe employee dress code, shift scheduling and leave were agreed upon by the union and the company.
For another, I would bet it'll be the rare outcome where the union and the company bring their last and best offers for a company's first-ever CBA, and the panel of arbitrators leave the employees worse off than when the union started. If that ever happened, then the employees would have a mechanism to change their representation, at least.
Lastly, it's not like any CBA lasts forever. Even in the federal government, the longest agreed duration I've ever known was five years. Both parties get to start again from zero at some point.
A union pressing a company to deliver better working conditions isn't a panacea for employees, but it's a hell of a lot better than nothing. At Wal-Mart, where my unpaid overtime becomes your bonus for keeping time-and-a-half down, a union can do a lot of good for individuals without the resources to fight their employers, and in a more cost-effective way than waiting for a few thousand others to be similarly harmed for a class action.
July 19, 2009 8:42 PM | Reply | Permalink
It is clear you haven't the faintest idea on the subject. Binding arbitration is not a tool to strip votes away, it's an incentive to actually ensure that contracts come to fruition. In fact, despite your blathering, countries that have enacted binding arbitration provisions have an incredibly low number of forced arbitration. In Canada the number of imposed contracts is 1.4%. And, first contract arbitration has actually decreased work stoppages and strikes.
Usually the company has no interest in ratifying a first contract. Current research shows that only 31% of unions actually get a contract within 1 year and 56% within two years. So, the status quo you are protecting gives workers almost no chance of voting - at all.
Any halfway honest employment lawyer (management side) will tell you that companies have no interest in looking for a contract. Why? Beyond the clear impetus to stave off unionization, it is almost impossible to juridically prove that a company is bargaining in bad faith. And even if an unfair labor practice charge (ULP) is levied, the company is merely told to return to bargaining - where again, they are free to act in bad faith. In effect, they can continually exhaust the bargaining process without any compelling reason to actually reach a contract.
In short, binding arbitration will compel good faith bargaining and ratify contracts. And in the case of your putative sympathy for the workers' vote - they are much more likely to get that vote with first contract arbitration.
July 19, 2009 9:28 PM | Reply | Permalink
"Period."
?
Really? You truly believe that is the absolute and only outcome? I think it's true that arbitration will result in a contract which workers will not be able to vote whether to accept or not.
But that is FAR from all that it does.
Try this construction, and decide whether it is at all appealing:
Binding arbitration means a contract that management can't refuse.
Or put another way - the end result is an authority grabbing management/ownership by the collar and growling "Quit screwing around" an inch from their face.
Do you have a problem with that?
July 20, 2009 2:16 PM | Reply | Permalink
Suppose, perish the thought, the Union loses the election. Is post election retribution firing possible under this proposed compromise? If this is a stupid question, I apologize.
July 18, 2009 10:59 AM | Reply | Permalink
Not a dumb question at all.
Currently, there is no actual compromise - just the beginnings of a oral agreement.
But the answer to your question is a bit complicated. If the original parts of EFCA regarding employer retribution remain, then - theoretically - retribution would be less likely to occur. But it is no guarantee.
The plan is that by strengthening the penalties, employers will be less likely. But it remains to be seen how tough the penalties remain and how stringent the enforcement mechanisms are.
July 19, 2009 10:18 PM | Reply | Permalink
I'm glad you asked that question, because I was wondering about that as well.
July 20, 2009 2:28 PM | Reply | Permalink
John Doe puts up his money to start a business. He gose too the bank and puts his home, future and family's future on the line. John hires you. You turn out to be a jerk. John fires you. It's still John's business stupid. All business owners should be kind, considerate and understanding of their employees. Most companies operate that way, those that don't won't last long and will find themselves in court.
July 18, 2009 2:49 PM | Reply | Permalink
You turn out to be a jerk and don't perform, you can be fired, union or not. So I'm not sure what your point is.
And most of the time, it's not "John's business" but a bunch of other investors, the bank's and a whole host of other larger financial institutions benefitting if workers rights are violated. So just evoking the "John the business owner" or "Joe the Plumbers" in policy discussions doesn't really get to the issue of whether employers should be able to violate the law without penalty.
July 18, 2009 3:07 PM | Reply | Permalink
Given that "small business" includes anything under 500 employees, I'd say that John Doe is a rarity.
Maybe we need to redefine some of these terms, so that Mom & Pop businesses once again comprise the majority of small businesses.
July 20, 2009 2:19 PM | Reply | Permalink
Under 500? Wow, I didn't realize that. So that means that the financial institution that I work for, with nearly $1 billion in assets, is a small business. Gee. I knew we were a long way from Bank of America, but I never thought of it as a small business, either.
July 20, 2009 2:36 PM | Reply | Permalink
Yeah, i was Wrong on that one, by an order of magnitude. Info I saw shortly thereafter suggests that the SBA uses 50 as the upper threshold to be considered Small Business.
I think I got confused with how Dell treats my employer, basing account type and discounting on the basis of headcount.
August 16, 2009 11:38 AM | Reply | Permalink
Nathan,
First, I suspect you have never worked in an automotive factory or a public high school. If you had, you would never make the statement that if "you turn out to be a jerk and don't perform, you can be fired, union or not." Try to fire than tenured teacher or pipefitter who won't do his or her job. That is not the reality in many industries that have had unions for more than a few years.
Second, whether the business is owned by a sole proprietor or a group of lenders and investors shouldn't make a difference to you. I think your anti-business side is showing. Why does it matter whether it is "Joe's business" or "Joe and Mary's business" or "John and Mary and 100 investors' business"?
July 20, 2009 9:36 PM | Reply | Permalink
John Doe puts up his money to start a business. He gose too the bank and puts his home, future and family's future on the line. John hires you. You turn out to be a jerk. John fires you. It's still John's business stupid. All business owners should be kind, considerate and understanding of their employees. Most companies operate that way, those that don't won't last long and will find themselves in court.
July 18, 2009 2:50 PM | Reply | Permalink
This is not about employers violating the law, no one should without penalty. Anyone who has a retirement plan and most wokers do are investors. No one should be harassed by employers or fellow empolyees or union promoters who make their living by convincing you they can negotiate with your employer better then you can for a fee. Lastly, our right to cast a secrete ballot is one of our sacred rights. Always be very,very careful when exchanging a right for that which we perceive to be better.
July 20, 2009 9:08 AM | Reply | Permalink
Which kind of binding arbitration is it? Does the arbiter get to impose whatever they want, or do they choose between the union and management positions?
July 20, 2009 1:21 PM | Reply | Permalink
What do you mean "what kind of binding arbitration"? Is there more than one kind?
Arbitration only kicks in after 30 days of federal mediation that either side can request if no contract is negotiated within 90 days after a union is certified, and it only kicks in if one party or the other asks for an arbitrator. There's nothing that says they can't continue to negotiate after that time if both parties agree to continue. It's only if one party concludes that the other is not negotiating in good faith, but simply stalling, that binding arbitration enters the picture. The experience in other jusrisdictions with similar laws is that first contracts are reached by mutual negotiation about 90% of the time.
Both parties must agree on the arbitrator, which helps to ensure neutrality, and the choice is made from a list of professional arbitrators which includes specialists for particular industries. Studies have shown that contract terms resulting from arbitration are quite similar to those that are arrived at through voluntary negotiation. Arbitrators don't go off on wild tangents; arbitrators known to do that wouldn't find themselves selected to arbitrate very often where both sides had a say in the choice of arbitrator.
Read a primer on the EFCA which debunks the myths that the right has been circulating about the EFCA here.
July 20, 2009 3:13 PM | Reply | Permalink
Binding arbitration means you get an arbiter, who decides, and it's binding. But I've read of different kinds of allowable arbitration decisions. In one kind the arbiter can impose an agreement somewhere between the positions of the two parties. In another, the arbiter chooses the position of one of the parties and imposes it.
In the split-the-difference version, the incentive for each party is to present a bad-faith final position to the arbiter, in the hopes that a decision somewhere in the middle will favor what they actually wanted. In the A-or-B version, the incentive is for each party to present their most moderate possible position, because presenting an extreme one will automatically give their opponent the win.
July 20, 2009 9:39 PM | Reply | Permalink
I just wish once in this whole argument about "secret ballots" someone called bullshit on the companies concern. These are companies that send out proxy ballots for shareholders. These is nothing secret about that.
July 20, 2009 3:17 PM | Reply | Permalink
Where to start? I'll start at the end: If the proposed EFCA becomes law, you will see many businesses begin (or accelerate) their plans to relocate production to a lower cost region of the world. EFCA will be the best stimulus package Mexico could imagine.
Whether you believe it is rational or not...the fact is that highly unionized industries -- Automotive, Steel, Government Workers -- have seen their membership steadily decline over the years. In addition, their employers have faced bankruptcy, in no small part due to the costs and work rules negotiated with unions over many years. US Steel...bankruptcy...General Motors...bankruptcy....California....bankruptcy (or the public equivalent)...Lear Automotive...bankruptcy...Chrysler...bankruptcy. Rigid work rules, pay based on seniority rather than ability and threats of strike all create an environment where going to Mexico (or China or India) are all reasonable options for a company whose primary concern is growing its business and providing a return to its owners.
Unions increase cost and decrease flexibility; don't be surprised when businesses take actions to decrease costs and increase flexibility.
July 20, 2009 9:17 PM | Reply | Permalink
John, you should be aware that the ONLY concern most businesses have, is to provide a return to its owners, or in corporate-missionspeak, "increase shareholder value".
If that mission is not good for America, or Americans, they should be prepared to grab their ankles.
July 21, 2009 8:51 AM | Reply | Permalink
True enough, Kenga. However, businesses won't just grab their ankles, they will also grab their passports. Capital is mobile and will move. Businesses have moved away from California and Michigan and other places with high taxes and restrictive labor policies. If the entire US becomes like those states, business will move elsewhere...along with jobs and tax revenue.
July 21, 2009 10:28 PM | Reply | Permalink
Many of them will insofar as they are able.
And many of them will realize once they get fed up and start thinking about moving, that most of the "nice" countries charge much higher effective tax rates than the US, and start to have second thoughts about moving to the Third World.
There's a cost to moving out from under the safety umbrella that is provided by the US government.
There are those that will value being able to put a tag reading "Made in the USA" on their products.
August 16, 2009 11:47 AM | Reply | Permalink
John, you raise an interesting point, but I would suggest that profits, not fair wages for American workers, is why jobs leave this country. Point in-fact, about ten years ago Levi's closed it last American-based blue jeans factory. I called Levi's to tell them that their product was as "American as apply pie" and questioned why they'd no longer manufacture their jeans in the U.S. I was told that Levi's decided to be a "marketing" institution, and no longer a producer of jeans, and that by moving overseas they could keep the cost of their jeans competitive. Here is my question: the Levi jeans that I bought that were made in the U.S. cost me less than the Levi jeans made presumably by cheaper labor in Mexico - so where is the savings to the consumer? The unassailable truth is that the promised "savings" in reality were passed along as profits for someone else, at the expense of both the overseas workers and to the U.S. consumers.
July 22, 2009 10:34 AM | Reply | Permalink
Matt H,
I'm not familiar with the economics of jean production. I'll leave it to the experts. See attached article (originally from NY Times): http://www.globalpolicy.org/component/content/article/162/28078.html
If you look at textile manufacturers, they don't make much money...and cost is a key consideration. I'm not saying that all off-shoring is good; higher transportation costs, a longer and more disconnected supply chain, harder to control quality all argue for keeping production closer to the end market being served (usually the US, given our consumption). However, higher labor costs, inflexible union rules and threats of higher taxes all work to overcome these advantages.
July 22, 2009 10:30 PM | Reply | Permalink