Editore"s Note
Tilting at Windmills

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January 23, 2009
By: T.A. Frank

A FEW MORE THOUGHTS ON EFCA: My piece on the Employee Free Choice Act for the latest issue of the Washington Monthly, which Steve commented about here, has generated some thoughtful responses in the blogosphere. I can't get to all of the issues raised, but there are a couple of points I did want to reemphasize or clarify.

I think Ezra Klein is wise to lament that the debate over EFCA concerns a "future legislative regime rather than the ongoing abuses of corporations under the current law." As Ezra states, the problem is that employers are breaking the law to prevent unionization--period. That's what we're trying to remedy. That's where the debate should be. It's up to us to try to take it there.

But when Ezra objects that "unions and the corporate community are unlikely to both be wrong on the import of card check," I'd just like to challenge that assertion a bit. Card check as a provision in EFCA is definitely a help to unions, no doubt about it, but I submit that one reason it's been emphasized so heavily in the current debate is that unions have allowed Republicans and the corporate community to set the terms of the conversation. Republicans like to talk about the card check provision because it's easy to paint as something bad and anti-democratic--and this provides a cover for opposing the entire piece of legislation. Supporters of EFCA get suckered into this debate because they know card check is a justifiable and misunderstood provision--so they can't resist defending it. And that's the trouble: it's just impossible to explain in less than 400 words.

This brings me Jane Hamsher's criticisms over at Firedoglake, where I'm glad to have achieved the level of "well-intentioned but ultimately flawed." ("Flawed" is the norm for me--but "well-intentioned" is a promotion.) Hamsher seems to think I accept the GOP's objections to card check at face value. I don't, and I think I make that clear in my article. In fact, in her 437-word explanation of what card check is and isn't, Hamsher makes one of my points for me: that there's no succinct Democratic counter to the easy GOP talking point about eliminating the "secret ballot" and threatening workers' freedoms. That might be frustrating and unfair, but that's the reality of it.

Hamsher and I agree that other provisions in EFCA--such as arbiter-imposed contracts--probably scare corporations much more than card check. But Hamsher gets my argument wrong when she summarizes it as follows: "Just give up 'card check' in order to appease the bill's opponents, and everything will be hunky dory." Please. The point isn't to "appease" the bill's opponents; the point is to remove the only rhetorical fig leaf they have when opposing EFCA.

Look, I don't presume to know the intricacies of Senate horse trading, so I'm not trying to advise Senate Democrats on their EFCA strategy. And I'm a journalist, not a movement operative, so I'm not going to insist on some absolutist version of EFCA in order to set up parameters for the Democrats' opening negotiating position. I'm simply trying to clarify the issue as I see it. And in my eyes, certain provisions in EFCA matter a lot more than card check. If card check passes intact, great. But, given that card check probably requires many times more political capital to wedge into the bill than anything else in EFCA, I wouldn't be surprised to see it abandoned in the final version. And I won't be joining liberals and progressives in raising cries of betrayal or spinelessness should Democrats wind up settling for only 80 percent. The long game is what matters here.

T.A. Frank 5:56 PM Permalink | Trackbacks | Comments (13)

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I read and liked Ezra's comments.

Posted by: MattYoung on January 23, 2009 at 6:11 PM | PERMALINK

there's no succinct Democratic counter to the easy GOP talking point about eliminating the "secret ballot" and threatening workers' freedoms. That might be frustrating and unfair, but that's the reality of it.

It should be employees who choose the fairest way to decide whether they want a union. Not the company.

"It's ridiculous that employers tell their employees how they're allowed to choose whether a union represents them. If your company has shifts, or you know a lot of people work a second job and wouldn't be able to make a vote, you should be allowed to decide on a union another way than making everyone do an in-person vote. Their stockholders are allowed to vote by signing cards, why are companies saying workers can't do it?

It's not fair that if you bring signed cards to an employer, they get to say 'oh, wait, we don't accept this, we want a do-over with totally different rules.' Why should the boss get to pick the rules when it's not his union? It's the workers' union! THEY should be able to bring an election result OR a card check result to the company, and the company should have to accept it."

Posted by: anonymiss on January 23, 2009 at 6:11 PM | PERMALINK

Why can't a card check be designed to be secret?

Problem solved.

Posted by: lobbygow on January 23, 2009 at 7:06 PM | PERMALINK

Really, why not have a unique identifier for every employee that's eligible to be represented and have a third party method or on-line method for obtaining a verifiable but anonymous "signature?"

Why not?

No in-person vote necessary. No chance for either the union or the employer to target an individual directly because of their vote.

Posted by: lobbygow on January 23, 2009 at 7:09 PM | PERMALINK

Riffing on this some more...

Maybe Obama administration proposes that we fund a project to have the NLRB create a website for the expressed purpose of conducting coercion free elections. Individual votes could be reliably verified but both employers and unions would be locked out of knowing how an individual voted.

It's possible given current technology. Expensive maybe, but we'll need to eventually do the same for other types of elections. Why not this as a pilot? Or maybe offer incentives to employers who agree to participate in the testing phase.

Posted by: lobbygow on January 23, 2009 at 7:22 PM | PERMALINK

Riffing on lobbygow's online election system...
cheap and easy to do it in a number of different ways. For that matter, there's bound to be a few tnes of thousands of crappy electronic voting machines without paper trails that should be available soon...real cheap.

Posted by: Common Sense on January 23, 2009 at 8:12 PM | PERMALINK

"it's just impossible to explain in less than 400 words"

Employees indicate that they are interested in forming a union by filling in postcards supplied by the potential union organization. If 30% of the employees fill out the cards the union can start a formal process that leads to an election to decide the formation of a union at that location. If over 50% of the employees fill out the cards the employer can choose to recognize the union. The EFCA would take away the employers choice and require the employer to recognize the union if over 50% of the employees fill out the cards.

95 words, I'm just sayin'.

Posted by: Dabear64 on January 23, 2009 at 8:42 PM | PERMALINK

You appear to be claiming that Jane Hamsher took more than 400 words to explain what "card check" means. This is, of course, not true; her article has a very compact explanation:

When told about proposed legislation in Congress that would make it easier for workers to form unions by allowing employees to be represented by a union when a majority of their coworkers sign cards saying they want to join that union, voters favor the Employee Free Choice Act by nearly three to one (55% favor; 28% oppose).

The text within quotes is the explanation. Only 32 words, and it could be made even shorter.

Posted by: Joe Buck on January 23, 2009 at 8:49 PM | PERMALINK

there's no succinct Democratic counter to the easy GOP talking point about eliminating the "secret ballot"

How is "that's bullshit" not succinct?

Posted by: August J. Pollak on January 23, 2009 at 9:47 PM | PERMALINK

The simple response to the idea that EFCA will abolish the "secret ballot" is They Are Lying.

Under current law, there are two means for workers to organize -- either through secret ballot or through card check. The catch is that the choice of which means is used is made by the employer

Under EFCA -- you have the same two choices, but the choice is made by employees.

The current state of the law might best be described as the EmployER Free Choice Act.

See -- that wasn't so hard.

BTW -- the guts of the above came from Al Franken's website. The Employer Free Choice Act quip is all mine.

Man, he is going to be a GREAT Senator

Dvae in DC

Posted by: Dave in DC on January 23, 2009 at 9:58 PM | PERMALINK

Firedoglake is a great place to go if you are one of the annointed who Know What Is Best for the rest of us. They're exactly the kind of lefty morons I haven't been able to stand for the past 30 years, which is why I haven't gone there in 5 years. Being attacked by Jane Hamsher is like a badge of honor that you have a brain.

Posted by: TCinLA on January 23, 2009 at 11:22 PM | PERMALINK

I haven't been attacked by Jane yet (at least I don't recall it), so I guess I'll have to keep going there and trying to earn that badge -- scout's honor!

Posted by: MarkH on January 24, 2009 at 1:20 AM | PERMALINK

I read the article "The Little Unions that Couldn't" from beginning to end. It really captured my attention and I couldn't help but remember some of the stupid jobs I've held where there was no employee representation, just you and whatever the boss says goes and no one to back you up.

The employer should NEVER hold all the cards when it comes to negotiating pay and work conditions. Even the most benevolent employers may have abuses or discrimination issues that are swept under the rug.

I like that the article goes on to describe a particular instance of why card check is needed and I agree wholeheartedly.

Posted by: ThatDeborahGirl on January 25, 2009 at 9:36 AM | PERMALINK



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