Editore"s Note
Tilting at Windmills

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January 21, 2009

CARD CHECK.... The Employee Free Choice Act, its prospects on the Hill, and its support from Barack Obama have already generated considerable interest, and appear to be one of the key Democratic proposals that will draw the most heated Republican opposition. Indeed, opposition began in earnest in the fall, when a group of Southern Republican senators blocked aid to U.S. auto manufacturers, calling it the "first shot against organized labor."

In a provocative piece for the upcoming issue of the Washington Monthly, editor T. A. Frank pays particular attention to the bill's "card check" provision, which would empower workers to certify a union by having a majority of employees fill out cards authorizing a union to represent them. Frank argues that EFCA is an important bill, but the card-check provision isn't worth fighting for.

The question, then, is how much of a fight the card check provision merits. And the answer is probably a little, but not a lot. 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. Workers I spoke to in Lancaster seemed content with this alternative. And some savvy people in the labor movement I spoke to feel the same way -- provided that employers either refrain from captive-audience campaigning or else grant union members equal access to the workplace during a campaign.

Given that card check is substantively minor, why has it come to define the entire debate about EFCA in Washington? Because it is the one element of the bill that its opponents can object to and still seem principled -- it's easier to stand up for "democracy" than for the right of companies to break labor laws without consequence. And all of this factors into the gamesmanship that's likely to take place on Capitol Hill over EFCA. Commentators like Marc Ambinder have called the fight "a quandary" for Democrats, one that carries a risk of disastrous failure. But must it come to that? Deploying political capital wisely means fighting over what matters most, not what matters least. Perhaps the bill's proponents in Congress intend to stand firm in their defense of the card check provision of EFCA. But if they strategically retreat, at just the right moment, like a matador lifting his red cape, will liberals accuse Democrats of selling out labor? Or will they realize that, with or without card check, EFCA will still accomplish what's most needed -- finally, at long last, restoring the rights of workers who seek to organize?

It's an interesting argument. Take a look.

Steve Benen 1:30 AM Permalink | Trackbacks | Comments (28)

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I've wondered if we didn't just need an administration that was fair and honest in labor relations rather then allowing card check to set up union representation. Maybe after three years with progressive policies in place no one will care about it anymore.

Posted by: Lance on January 21, 2009 at 6:48 AM | PERMALINK

I am a lifelong liberal who's never shied away from the L word, and I think I'm a big supporter of organized labor. But I still find myself uneasy about the card-check part of EFCA. I've heard the arguments but so far they don't outweigh the stain of negating secret ballot voting. Unlike many on the right, I am willing to be convinced, but no one's even taken a decent stab at convincing me as far as I can see.

In short, I would be content to see EFCA pass with the card-check stripped. But of course I speak for no one. :)

Posted by: Bernard HP Gilroy on January 21, 2009 at 6:52 AM | PERMALINK

I think his argument is spot on.

Secret ballots are not a problem, and may be an asset.

The problem is the intimidation of employees with either direct threats against their employment or implicit threats.

The best way to handle that is make it EXTREMELY painful when such tactics are discovered, and severely fine the perpetrators - perhaps even jail time for the individual actors and those who are found to have approved or ignored the intimidation.

The real question is what to do about regular old opinionating on the part of "management." Should managers be prevented from expressing an official opinion on what unionization could mean to the overall business, including impact on operating costs and future employment opportunities? Is it simply a matter of the forum where such opinions are expressed, the implicit power relatinship, and the access to the audience? Would small businesses be exempt?

Details, but the small "d" democratic issues aren't cut and dried for me.

Posted by: lobbygow on January 21, 2009 at 6:53 AM | PERMALINK

Shorter TA Frank

Even though we finally have an overwhelming majority in the House an almost filibuster proof majority in the Senate and the Presidency, its now time for Democrats to compromise.

Wow.

Posted by: sgwhiteinfla on January 21, 2009 at 6:54 AM | PERMALINK

Card check would be fine if all unions and all union organizers were fair and civilized. But read up a little, for example, on the IBEW in Philadelphia, headed by John "Johnny Dock" Dougherty. There is a dark underside to the union movement, which certainly doesn't represent a majority, but it's there.

Posted by: jbd on January 21, 2009 at 7:22 AM | PERMALINK

This is why Republicans win and Democrats lose. Frank may be on to a potential compromise, which under certain situations may be a worthwhile concession. He even says that it should be deployed at "just the right moment." How very smart and perceptive of him. He needs to make sure that everyone sees how smart and perceptive he is. Rush to print. Other Dems agree to the compromise -- in effect, negotiating with ourselves -- and the starting point of the legislation gets moved. In short order, Obama will be criticized for not throwing card check overboard, thus proving that he is captive to the special interests. The politial terrain that results is the GOP and Big Business on the Right, and Obama and Labor on the Left, and T.A. Frank right smack in the sweet spot of the reasonable center. Happy Days are Here Again!


Republicans on the other hand, support the proposals of their coalition, and let their leaders do the negotiating when the time is right. When the inevitable legislative compromise comes, they keep their fire on the opposition who forced the compromise, rather than putting their leaders in the no-win position of being beholden to the special interests before the deal and weak-willed pushovers after.

Let the President and the Legislative leaders do their jobs.

Posted by: Tom in Ma on January 21, 2009 at 7:35 AM | PERMALINK

Also note one thing about this post.

the bill's "card check" provision, which would empower workers to certify a union by having a majority of employees fill out cards authorizing a union to represent them.

Thats almost true except for the fact that its not a done deal when the cards are turned in. They still have to be investigated by the Labor Board to confirm that all of the names on the cards are valid. Which is basically supposed to be the whole reason behind needing the SECOND ballot, secret or otherwise, to certify a union. Is there ever another situation in this country where we tell people they have to win twice in order to declare victory?

Posted by: sgwhiteinfla on January 21, 2009 at 7:39 AM | PERMALINK

Put me down on the side that says it is tremendously stupid to negotiate with yourself when you're in a position of power.

Also, seems to me that the argument that strengthened enforcement will suffice requires that the enforcement be performed While that won't be a problem for the next four years you can bet your ass it will be the very minute a Republican administration takes over. We've been down the "rely on enforcement" road and that way lies the death of the middle class.

Posted by: chaboard on January 21, 2009 at 8:13 AM | PERMALINK

Just so we are all clear on what EFCA is and isn't here is the relevant section of the bill.

http://thomas.loc.gov/cgi-bin/query/D?c110:2:./temp/~c110mDrLuD::

`(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

Notice that there is no language about secret ballots. Also notice that its not taken on faith that the cards are valid. Now maybe Frank would hve been better served writing an article about why members of Congress need to do a better job of EXPLAINING card check instead of just telling them to concede the point when if you read the article Frank himself proves why the provision against mandating a second election is necessary. As soon as Dems open the door to words like "a few days" they are screwed because Republicans will claim that 2 or 3 months = "a few days".

Nice to see that the willingness to capitulate at the mere prospect of a fight by supposed liberals like Frank hasn't died down with all this talk of hope and change though.

Posted by: sgwhiteinfla on January 21, 2009 at 8:25 AM | PERMALINK
Put me down on the side that says it is tremendously stupid to negotiate with yourself when you're in a position of power.
Sadly, that's all the Democrats know how to do anymore.

EFCA- ALL of it, very much including card check- is a make-or-break moment for this Administration. Either unions are empowered to start organizing previously impervious employers and increasing their membership and clout, or they go the way of the dodo and finish Reagan's job for him (as well as finishing off what's left of the middle class) no matter what Obama's good intentions might be.

Without strong unions there is no Democratic Party, and a party that can't even recognize and act on its own self-interest is unfit to govern.

Posted by: Steve LaBonne on January 21, 2009 at 8:41 AM | PERMALINK
Nice to see that the willingness to capitulate at the mere prospect of a fight by supposed liberals like Frank hasn't died down with all this talk of hope and change though.
General Thomas Frank's orders are "Don't surrender until you see the whites of their eyes!" Posted by: Steve LaBonne on January 21, 2009 at 8:50 AM | PERMALINK

Sgwhiteinfla, It's good to see your strong support for labor. I think T.A. Frank has a good point though.(and a good story) I do not see this as capitulation. I like the concept from Judo of using an opponents strength to defeat him. Rather then take on the difficult task of explaining card check, simply drop that requirement and ask labor opponents to explain their continued opposition without the card check argument. Labor is going to make gains in the next four years, lets focus on long term goals.

Posted by: Maineiac on January 21, 2009 at 9:04 AM | PERMALINK

Card check would be fine if all unions and all union organizers were fair and civilized. But read up a little, for example, on the IBEW in Philadelphia, headed by John "Johnny Dock" Dougherty. There is a dark underside to the union movement, which certainly doesn't represent a majority, but it's there.,/i>

Well, yes, the building trades unions are pretty incredibly corrupt and thuggish. Johnny Dock (who is not my state senator, hurray!) is awful. But the building trades unions just are not the unions that are organizing new workers. The building trades are already unionized - that's the whole point. They're an old school guild, trying to limit the supply of skilled workers to increase pay for its members. These are not the unions that are organizing, so using them as an example of the bad side of unions that make card check problematic seems like a red herring.

Posted by: John on January 21, 2009 at 9:14 AM | PERMALINK

The problem with this is that all of the other provisions depend upon good faith interpretation and enforcement of the act, and that has been sorely lacking from the Republican-dominated NLRB and federal courts for quite some time.

Posted by: dp on January 21, 2009 at 9:21 AM | PERMALINK

Maineiac

Here is the problem with your and I guess Frank's premiss in my opinion. By giving up on allowing workers to organize a union WITHOUT having to hold a second election you are almost certainly creating a situation where employers will work even more diligently to prevent unions from organizing in the first place. Frank's illustration of what happen with Rite Aid is as clear an indication of this as I could possibly imagine. For some reason its being pitched that the card check option is just a minor part of the bill. Thats very interesting to me in that

1. Its the VERY FIRST ISSUE spelled out in the bill.

2. If a union isn't allowed to organize, every other provision of the EFCA is moot.

3. If an employer engages in shenanigans to keep the union from organizing between the first and second election by doing things like firing employees or intimidation they end up paying a fine and or back pay. But guess what, they still get to have a union free organization don't they? And its not set in stone that they will pay a fine because the situation will have to be investigated first. Do you know how hard it is to prove that you were fired because you were going to vote for unionization?

Again you might as well say scrap the whole EFCA if you are going to take away the card check provision because with out it pretty much the rest of the bill is pointless.

Posted by: sgwhiteinfla on January 21, 2009 at 9:21 AM | PERMALINK

it's almost a throw-away line - people I spoke with were fine with it " provided that employers either refrain from captive-audience campaigning or else grant union members equal access to the workplace during a campaign." After the business lobby finishes touting the sanctity of "secret ballots," they'll move next to the sanctity of private property and free speech, all of which is just a cover to maintain the unequal power dynamic in a employer/worker relationship.

What other organization requires a secret ballot to join? let's see, the chamber of commerce, boy scouts, church, acorn, aarp. nope.

Posted by: dave on January 21, 2009 at 9:33 AM | PERMALINK

Can't get blood from a turnip. In a global free trade economy, there is enormous pressure for wages to equilibrate worldwide, meaning US workers can either accept steadily decreasing wages, or zero wages as outfits like GM go out of business or offshore jobs.

Posted by: Luther on January 21, 2009 at 10:20 AM | PERMALINK

Which is why the global free trade economy can't and won't continue in its current laissez-faire form. Or to put it in terms you might be able to understand, we need to produce and buy more of our own stuff rather than borrow money from the Chinese to keep buying boatloads of their crap. Conversely, they need to stimulate domestic consumption instead of continuing to lend to bad-debtor countries like the US in order to keep the export machine running.

The unrestrained-globalization thing was tried. The result is the worldwide wreckage we see around us. It's time for the economists who shilled for it to STFU and go back to their offices to try to figure out where their grandiose theories went wrong.

Posted by: Steve LaBonne on January 21, 2009 at 10:27 AM | PERMALINK

Dave - the problem with your analogy is that no one is forced to fund or join those organizations just because 50% + 1 of their coworkers signed cards. I admit to some bitterness here- I've watched grad school union organizers and negotiators in action and seen what a terrible job they do representing many of their supposed constituents. I realize these aren't representative of most unions, but they were affiliated with larger organizations such as the UAW, which reflects very poorly on that union.

Posted by: Nat on January 21, 2009 at 10:29 AM | PERMALINK

There's a fairly simple "compromise" available: make the penalties for interfering with an election onerous enough that card check will look like the safest possible alternative. Let's start with triple damages to any worker fired or harassed, and a million-dollar-day fine for every day an election is illegitimately delayed (if judges can impose such fines to break unions engaging in unlawful strikes, they should certainly be able to do it to companies engaging in unlawful union-busting).

Oh, and a whistleblower clause with a qui tam provision sufficient to set up any lower-level manager who squeals on the bosses for life.

Posted by: paul on January 21, 2009 at 10:44 AM | PERMALINK
There's a fairly simple "compromise" available: make the penalties for interfering with an election onerous enough that card check will look like the safest possible alternative.
And of course, that will continue to be zealously enforced the next time there's a Republican in the White House. FAIL Posted by: Steve LaBonne on January 21, 2009 at 10:48 AM | PERMALINK

I would be vastly more supportive of EFCA were the card-check provision removed. It just smacks of stacking the deck. It may be the case that employers already stack the deck in their favor, and so unions need to so something to respond, but a fairer feeling solution is to keep the employers from behaving badly in the first place.

Posted by: TW Andrews on January 21, 2009 at 11:16 AM | PERMALINK

Steve:

You misread my notion of how the "compromise" would work. Put those kind of provisions in EFCA (none of which the GOP would feel as comfortable about opposing in speeches, because standing up for corporate lawbreakers is not good politics right now) and watch the business world's opposition to card check crumble. If you're a union-buster and your choice is between going to jail and losing a lot of money sometime in the next four years, or accepting card check, the choice will be card check. Right now, the choice is card check or business as usual.

Posted by: paul on January 21, 2009 at 11:27 AM | PERMALINK

My potential compromise is a bit different: keep card check but add a secret-ballot retention election a year or so out from recognition.

Posted by: CJColucci on January 21, 2009 at 11:28 AM | PERMALINK

it's easier to stand up for "democracy" than for the right of companies to break labor laws without consequence.

Why doesn't the Obama administration merely enforce the laws already in effect? Even new laws will depend on effective enforcement, and if the problem is non-enforcement, it is hard to see how the non-enforcement of new laws will produce any progress.

Posted by: MatthewRMarler on January 21, 2009 at 12:00 PM | PERMALINK

Dumb article. One of an ongoing series of dumb neolib articles from WM. (Steve, will you tell us, someday, if Paul Glastris requires you to be a shill as part of blogging here?)

Card check itself may not be that big of a deal, but the GOP is making a big deal in part just to see how hard it can push. And Frank totally misses the point.

SGWhite then does a spot-on job of pointing out card-check itself IS in fact a big deal.

As for MatthewRMarler and others who say, "just enforce the laws we have more," well, Slick Willie undercut the NRLB about as much as Poppy Bush and Saint Ronnie did. I'd like tougher laws AND tougher enforcement, thank you very much.

Posted by: SocraticGadfly on January 21, 2009 at 12:07 PM | PERMALINK

The real question is what to do about regular old opinionating on the part of "management." Should managers be prevented from expressing an official opinion on what unionization could mean to the overall business, including impact on operating costs and future employment opportunities? Is it simply a matter of the forum where such opinions are expressed, the implicit power relatinship, and the access to the audience? Would small businesses be exempt?

Owners and managers frequently believe that unionization will cause them to lose competitiveness and market share, eventually if not immediately. Should they be prohibited from using company time to express this worry? Is this an "implicit" or "explicit" threat to lay off workers, or a statement of professional judgment?

Posted by: MatthewRMarler on January 21, 2009 at 12:08 PM | PERMALINK

I think it's more important to prevent employers from hiring "permanent replacement workers" during a strike.

Posted by: Cal Gal on January 21, 2009 at 1:07 PM | PERMALINK




 

 

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