s Barack Obama prepares to get a stimulus plan launched this winter, carefully planting seeds of cross-party warmth and nurturing each rare shoot, he may wish to avoid unrelated matters that cause bitter partisan showdowns and lay waste to the whole damn thing. At least, that seems wisest when you’re asking for a trillion or so in new spending. So people understood why Rahm Emanuel, during a meeting with the Wall Street Journal’s CEO Council last November, dodged an inquiry about a contentious piece of legislation called the Employee Free Choice Act. "Let me take your question and go somewhere else," he said to laughter.
EFCA carries no visible price tag. It’s simply a revision of existing labor laws that makes forming a union easier for employees. But if anything is likely to unite a dispirited Republican minority, EFCA is it. (Recall that United Auto Workers wage scales were what rallied Republican senators to defeat the auto industry bailout bill in December. A leaked Republican National Committee memo described that vote as a "first shot against organized labor.") For big business—and the GOP—the threat of a revived labor movement elicits far more terror than health care reform or stimulus packages. After all, health care and federal spending can be good for the bottom line; unions, not so much.
Contentious as it may be, though, EFCA is also one of the first pieces of legislation that congressional Democrats, or at least those closest to organized labor, want to see passed. The bill would strengthen a variety of laws and procedures that govern how employees choose whether or not to join a union. These are technical issues—ones that most voters, especially affluent ones, never think about. But they’re huge for millions of low-wage workers and the companies that employ them.
In Washington, the rhetoric over EFCA has centered on one specific element of the legislation called "card check." Under the proposed new law, if a majority of employees fill out cards authorizing a union to represent them, the union is automatically certified. Currently, employers can demand a secret-ballot election among employees to reaffirm the results. EFCA would eliminate this option. Republicans have called this a threat to liberty and democratic values. Democrats counter that it’s essential to protecting workers against employer coercion. But this squabble is a distraction. In reality, card check is the least important part of a very important bill. The following story should help explain why.
he setting is Lancaster, California, a city in the Antelope Valley, about seventy miles north of Los Angeles. If there’s anything charming there, I imagine the mayor would like to know about it. The landscape is one of long avenues with warehouses, malls, fast-food outlets, and ubiquitous young colonies of brown-stucco villas born at the height of a destructive housing mania. (And why such a dismal shade of brown? And how many thousands were built?) It’s in cities like this that specialists apply green spray paint to the dead lawns of foreclosed homes in order to keep up neighborhood appearances, such as they are. The area enjoyed a boom after California made it a special enterprise zone in 1997, but that ended when the real estate bubble did. Jobs here have long been scarce.
In 1998, the drugstore chain Rite Aid Corporation broke ground on a million-square-foot distribution center, constructed on eighty-eight acres of land purchased from the city of Lancaster for $1. The following year, the distribution center began to hire. "It was very exciting," recalls Angel Warner, who landed a job in production before switching to inventory control. "For a long time, this area had been depressed." The number of employees grew from several hundred to over a thousand.
These were decent jobs. Employees started at a modest $10 an hour, but they received benefits, and after a few years some workers could earn over $15 an hour. Carlos Rubio started as a temp in 2000, and then, after a few months of probation, he was hired as a full-time employee at $10 an hour. "I put in so many hours my wife thought I was cheating," Rubio recalls. Like most of his coworkers at the time, he liked the company and his supervisors. "We had a manager, Rick, a nice guy, who inspired us," he says. "Even though things were crappy, he inspired us." In 2002, the Teamsters tried to organize workers at the warehouse, but Rubio, like most of his coworkers, voted against the effort. "They were too pushy," he says. Besides, he was content with his employer.
But Rick left in 2004, and a new management team came in. Surprisingly quickly, the atmosphere changed from collegial to hostile. Mandatory overtime increased, which was good for those who needed extra money but bad for those who had children and needed predictable hours. Managers no longer listened to employee feedback. "They treated you like crap," Rubio says. "They talked to you like you were a kid." One manager became known for saying, "If you don’t like it here, you can work at McDonald’s." Worst of all, to boost employee performance, Rite Aid had introduced productivity reporting software called ProRep. Each task would carry a certain code, which corresponded to a quota. Rubio says the software was "awesome," but that Rite Aid implemented it in a way that was unfair and inflexible. Soon, workers at the distribution center began to fear for their jobs.
For instance, suppose that your job was to pull boxes—a task that consists of driving a forklift over to the merchandise, elevating yourself in an operator’s cab, and venturing out onto the pallet to load it with boxes. According to ProRep, workers were responsible for loading 100 boxes an hour—whether the boxes were twenty pounds apiece or fifty pounds apiece. Another problem was that ProRep measured employees by weekly totals, regardless of how many days they had worked. If you called in sick one day—or were asked to stay home—the software made no allowance. So you’d miss your quota. Sometimes the codes didn’t correspond to a given task, so an employee could do exactly as instructed but still fall short on numbers.
Younger employees tended to adjust—they could summon the extra energy to lift fifty-pound boxes at a twenty-pound-box pace, or work through their breaks—but the older ones had more trouble. So did employees who were out of favor with management, because they tended to be assigned to more strenuous or disagreeable tasks. Soon, firings began, in a grim public ritual in which the unlucky employee was summoned over the intercom system, marched past his fellow employees on the factory floor, and soon after escorted from the building.
As a rule, dismissals were triggered when you failed three times to meet your quota. This, while harsh, is legal, but an important safety net exists for employees who are dismissed for insufficient productivity: they must receive unemployment benefits. But, the workers told me, the company usually found a way out of this. When ex-employees filed for unemployment, Rite Aid would counter that they had been dismissed for some reason other than productivity—errors, or insubordination, or truancy, or anything that didn’t require unemployment benefits to be paid. Rite Aid isn’t responsible for paying unemployment benefits of former employees, of course, but its premiums for unemployment insurance will rise if more ex-employees collect benefits. A few workers contested their cases and won, but most simply accepted the bad luck and moved on. (A Rite Aid spokesperson declined to comment for this article, citing ongoing contract negotiations.)
By 2006, with morale plummeting and management unwilling to listen to employee complaints, Angel Warner reached out to the International Longshore and Warehouse Union, or ILWU, and before long a union campaign was under way. The ILWU took a patient and fairly low-key approach to the effort. "[The ILWU] saw the need for union representation," Warner says. "They also saw the need to educate workers." Union organizers held meetings once a week at a local hotel. Every worker who was interested in joining up was asked to sign a union authorization card—a card with an employee’s signature authorizing a given union to represent him or her.
By June of 2006, about three months after starting their campaign, ILWU organizers had gathered authorization cards from about a third of the warehouse employees. And now this story will feature a brief but crucial technical interlude on how things work when you’re trying to certify a union. If you have union authorization cards from at least 30 percent of the workers at your site, then you can file them with a federal agency called the National Labor Relations Board, or NLRB. Once the NLRB has verified that the cards are genuine, then it will hold an election at the workplace a couple of months later and allow workers to vote a union in or out. If more than 50 percent of employees vote yes during the election, then the union is certified as the sole bargaining representative of the employees, and negotiations on a contract can begin.
Back to the story: The Rite Aid organizers filed their union authorization cards with the NLRB, setting the ground for an election. And then things got ugly—and illegal, too. Floor supervisors would pair up, isolate an employee, and grill him about the campaign. Do you intend to vote yes or no? How about your buddy Bob? Workers noticed managers trying to listen in on their conversations. And union supporters started to get fired—accused of errors or insubordination or other offenses.
Struck by Rite Aid’s response, ILWU organizers chose to delay the election and instead file charges of unfair labor practices with the NLRB. Eventually, the NLRB racked up so many complaints that it planned to take Rite Aid to trial on forty-nine violations of federal labor law. In the summer of 2007, though, Rite Aid chose to settle instead, agreeing to rehire two fired union supporters with back pay and to post a notice in a common area promising not to engage in thirteen types of illegal anti-union activity.
Despite the NLRB vindication, things didn’t improve. Rite Aid seemed to be creating turnover in the workforce faster than the ILWU could keep up with it. "The same things were happening," Rubio recounts. "Eventually we said [to the ILWU], If you hold us back now, we’re going to lose everybody. Let’s just go for it." It was now late in 2007, and, once again, union supporters gathered up union authorization cards. This time, however, more than half of the distribution center workers signed them. Now, here comes one more nuance of labor law: when a majority of employees signs union authorization cards and files them with the NLRB, an employer may choose to recognize the union immediately. But the employer can also insist on a secret-ballot workplace election to confirm the results.
Rite Aid insisted on an election, and the date was set for March 2008. Once again, the company did what it could to persuade workers to vote against the union. HR staff conducted mandatory hour-long sessions with employees once a week. They would lecture at length on why unionization would be damaging to workers. They would warn employees that the union would require high dues and stand in the way of healthy communication between management and labor. They would show videos about plants being shut down after becoming unionized. Meanwhile, by Warner’s count, more than 100 union supporters had been dismissed since June of 2006—although never, of course, for the explicit reason of having supported unionization. "We had a list of our people," she says. "And one by one we kept watching them get fired." By contrast, Warner says, only about ten non-union-supporting employees were let go in the same stretch.
Still, the ILWU was in luck. It won the March election, becoming the sole bargaining representative of the warehouse employees. And yet, the day after, things got worse. "The company turned overnight," recalls Elizabeth Trevino, a clerk in inventory control. "They were so angry you could see it in their faces." Managers began to use ProRep in a manner that now seemed designed to punish employees, and they enforced work rules even more strictly. "If you were late back from break even once, they would take disciplinary action," Trevino says. By August, thirty-nine more employees had been dismissed. Trevino, who had voted against ILWU membership, experienced a change of heart and began to attend union meetings. Eventually, she even ran for a union office.
Today, nine months later, Rite Aid and the ILWU have not yet come up with a contract. At meetings, Rite Aid has been pushing aside contract negotiations in order to discuss other things. Legally, Rite Aid is supposed to bargain "in good faith," but such terms are highly subjective and difficult to litigate. Work conditions for the warehouse workers remain much as before, perhaps even worse. And that works to Rite Aid’s advantage—for when a union fails to deliver, its members may lose faith in it and vote it out.
hy did Rite Aid take so many chances with the law? Perhaps because it made economic sense. While the company’s actions may have been illegal under the National Labor Relations Act of 1935, they were also nearly cost-free. If a company illegally undermines a union campaign by threatening to fire workers, or by spying on them, or by promising to shut down the facility, the most serious penalty it can expect to face is being ordered to post notices in the workplace promising not to engage in such activities in the future. If a company illegally fires a worker, and the worker can somehow prove his or her case, the penalty is a requirement to reinstate the employee with back pay—minus whatever the employee has earned elsewhere in the meantime. And if a company negotiates in bad faith, it can perhaps expect an order from the NLRB to start negotiating in good faith. Such punishments are the equivalent of punishing shoplifters by asking them to put the merchandise back.
This is what lawmakers have sought to remedy in devising the Employee Free Choice Act. For all the controversy, EFCA is a surprisingly modest bill, with provisions aimed at strengthening existing labor laws rather than altering them substantively. Under EFCA, if Rite Aid had been found guilty of making illegal threats or of spying or of intimidation, it could have faced a monetary penalty—up to $20,000 per incident in cases of repeated violations. If Rite Aid had been found to have illegally fired a union supporter, it would have been required to pay not just the back wages, but three times the back wages. And if contract negotiations were being conducted without results, either party could seek federal mediation after ninety days. If, after thirty additional days, negotiations were still stalled, then an arbiter would be able to impose a contract settlement that would last two years. This would prevent employers (or employees) from running out the clock with bad-faith talks.
Finally, the bill would have prevented a lot of the troubles experienced by Rite Aid workers simply because the second filing of union cards with the NLRB—in which over half of employees had signed up—would automatically have led to the certification of the union. This, again, is the card check provision of EFCA.
As a rhetorical matter, opponents of EFCA have seized upon card check with relish. "I think [EFCA] is a threat to one of the fundamentals of democracy," John McCain recently declared. Countless Republicans—and, curiously, even George McGovern—have voiced similar attacks. Of course, as the story of the Lancaster distribution center shows, workplace votes on unionization certainly don’t resemble a healthy election as most Americans would understand the term, with both sides able to plead their case. But this has become a powerful line of argument.
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?
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T. A. Frank is an Irvine Fellow at the New America Foundation and an editor of the Washington Monthly.