Dead horse again

EFCA is a dead horse that keeps getting beaten. If anymore proof is necessary look at what these candidates in close senate races are saying. Truly labor has itself to blame here for insisting on card check as the cornerstone of labor law reform. All that insistence did is create a sound bite for the opposition. "We oppose getting rid of secret ballot elections." By its own insistence labor allowed itself to be portrayed as undemocratic and even unAmerican. There is zero chance EFCA will get passed in a lame duck session.

Posturing!

My students and readers of this blog know my support for Dana Corp's approach to ensure that employees' right to select union representation by a majority vote is protected against abuse when a union seeks to establish majority support by card check which would support voluntary recognition of the union by an employer. This poster gets the import of the case correct. However, the representation that undoing Dana Corp is a novel way to impose EFCA-esque card check recognition is at best erroneous, and perhaps pure political posturing, as is other political comentary in the post. Undoing Dana Corp would return the law of voluntary recognition to its decades long, stable procedures which existed before the Bush majority NLRB decided Dana Corp in 2007. We do not see this as positive change because it diminishes a protection for workers (much as we believe card check recognition in EFCA would do), but it is not a radical departure form prior Board law.

EFCA and Dana Corp.

The 2007 NLRB decision in Dana Corp. probably irritated labor as much as any decision of the Bush Board. Essentially it gave employees an opportunity to contest the validity of a showing of a union's majority status by card check. Before a card check campaign could result in certification of a union, employees must be notified and provided a 45 day window to rally against card check and present evidence sufficient for the NLRB to conduct a secret ballot election. In reality this approach created a rationale safety valve to prevent coercive card check tactics. We have argued before unions should have embraced this model and should have adopted it as their reform proposal. It would have liberated the labor reform movement from the valid accusation it was attempting to eliminate secret ballot elections. Under Dana, the unions have seen few card check majorities successfully challenged. Thus, unions could have likely attained a new election process model which would have allowed majority status to be established by card check, subject only to employees havinv=g a brief window in which to challenge the validity of the card check majority. This article does a pretty good job of reviewing the issues. Unfortunately it looks like the new NLRB will revert to the old law under which a union can obtain voluntary recognition from an employer based upon card check alone. Frankly, this incentivizes collusion between an employer and a labor organization to accept a card majority which may not reflect the informed choice of a majority of the employees at any given time. There were a lot of questionable decisions by the Bush Board overturning years of Board precedent, but Dana Corp was not one of them. It properly protected the employees interest in having their collective will more likely determined in a fair manner.

Obama on EFCA

The Hill notes that President Obama conceded yesterday that the chances of passing EFCA are "not real high" although the legislation retains the administration's support. But passing a law is not the only path to change. The President also noted that many of the changes to the rules of union organizing sought by labor could be enacted administratively without need for congressional action.

Card check, NO!

This business owner's letter to the editor makes a strong case for preservation of the secret ballot for determining a union's majority status.

Dead horse beaten for political purpose

Despite fears being whipped up by its opponents, EFCA is dead. Not only card check, but any serious labor reform. Labor and Democrats will be playing defense for the forseeable future. But the killer wasn't corporate America, nor was it Rahm Emanuel or Senator Blanche Lincoln. The bill itself inflicted its own mortal wound by allowing opponents to frame it (correctly) as doing away with secret ballot elections. No amount of employer misconduct in the election process or retaliation could overcome the sound bite characterization provided by the fact of removing elections as the preferred way of determining whether a majority of the employees want union representation.

EFCA by appointment

The nomination of SEIU attorney Craig Becker was voted out of the Senate HELP Committee on a 13-10 straight party line vote.  In October, before the McCain hold on the nomination, two Republicans voted for Becker. Some echo chamber writers, (linked article removed) displaying a limited understanding of NLRB workings, rail against Becker and claim his appointment will result in implementation of card check recognition and mandatory arbitration of labor agreements. There are many valid reasons to oppose Becker if you are adverse to the labor position. There is little doubt seating Becker and President Obama's other two nominees would tilt the Board away from its Bush Board pro-management leanings. However, elimination of secret ballot elections and imposition of mandatory arbitration would require an amendment of the Act.

That card check dead horse again

Politicians continue to provide cover for a compromise on passage of a version of EFCA that does not eliminate secret ballot elections, binding arbitration, or draconian restrictions on employer speech. As we have previously blogged, this only makes such compromise easier by creating a public mindset that card check recognition is the only major issue.

The new EFCA - what labor wants

Randy Shaw at San Francisco alternative media Beyond Chron acknowledges card check EFCA is dead, something we have been saying for months. But he also defines what labor reform legislation must include to please progressives and labor into continuing financial support for Democrats. The list includes

1. enhanced penalties for violations
2. limitations on employer free speech during union drives
3. fast elections, preferably a week from showing of interest
4. expedited certification of elections
5. binding arbitration for first contracts, not reached by traditional bargaining within 90? days
6. Without these terms, Shaw suggests labor invest its political money in organizing, rather than supporting Democrats in 2010

The single most important item is item 5. Labors organizing failures are in large part due to the deficiency in the product they sell. They sell a service - representation of the membership. If a collective bargaining agreement is not reached, or if the one ultimately negotiated provides little protection and benefit for workers, the product is not attractive to workers, especially since it comes at a steep price monthly dues. If a new law guarantees a first contract will be reached, under threat of the imposition of one by an arbitrator, the union product receives a major enhancement, at least in theory.

Labor's problem is less about the election process and employers abuse of the organizing process. Labor can win elections. Labor's win rate averages over 50% for years, and 60% in 2008. The problem is labor cannot interest enough workers to agree to pay a union to represent them because the product of representation is often deficient, particularly outside of industries that have historically been heavily unionized, like the automakers.

Labor's goal is to be able to organize at a higher volume, attract more members, more quickly. The current election process is not fundamentally broken. It affords a civilized environment in which a discussion of the merits of unionization or remaining union free can be digested by employees. Thats not to say there are not abuses. The problem is the penalties for violation of the rules are not sufficient to cause some employers to comply with the protections the NLRA offers. Official NLRB statistics establish union claims about employer wrongdoing have been wildly inflated.

In an expedited election environment Labor wants to talk to employees in secret for weeks or even months, to sell the employees on buying the unions services, and then call for a quick election to deprive employees from a meaningful opportunity to hear the other side of the story. Labor seeks this because it knows there is a lawful, factual and persuasive other side. It is that factual reality which employees embrace when they decide not to pay the union to represent them.

"The penalties are so miniscule . . ."

From the AFL-CIO blog (with video) a GRIT TV segment on union busting. Hint: they blame the consultants for scaring workers away from unionization. Basically Labor continues to engage in the delusion that all workers would join unions "but for" their employer's opposition. But at the end of the video, the point well made is the penalties for serious violations are an insufficient deterrent to employer misconduct. Assuming this aspect of the NLRA is broken,  and there is a lot of agreement among labor relations professionals on both sides on this point, it does not follow that the election process is broken.  With EFCA, unions want employees to choose unionization without providing time for any presentation of the case for remaining union free. That's what is really at stake with both card check and quickie election proposals.

After card check

The American Spectator has a general update piece on EFCA. Not much new here except the "Beyond EFCA" headline. Its prescient. Card check is doomed. Quickie elections is the new thing. Can the unions get "beyond" card check? If they don't, any legislation is doomed. As we've said before, employers also need to get past any attacks on the proposed legislation taking away secret ballot votes. It wont. All the fear-mongering about taking away secret ballot votes plays into the hands of compromise involving quick elections.

Canadian card check scholarship

We have followed other comments on the effect of card check legislation in Canada and its relevance to analysis of the issue in the United States. Previous posts are here and here. Now there is something with a lot of substance to review. More after the jump.
The latest edition of Just Labour, a research publication sponsored by Canada's York University's Center for Research on Work and Society, is devoted to the Canadian experience with both card check recognition and mandatory elections to determine representation. There is a lot to digest here, and it has a decidedly pro-labor tilt, but brings to the debate substantial comparative data that challenges assumptions previously made by EFCA opponents. Digesting the writings was on the Thanksgiving holiday agenda, but tryptophan got in the way. More soon.

Politics of card check

We have noted multiple times on this blog EFCA, with card check, is a dead issue. There will be labor reform, but removing the secret ballot election from the representation process is not going to be a part of the final law. Opponents of card check are beating a dead horse. Not only is this wasteful of resources, it makes "quickie" secret ballot elections an increasingly viable alternative. By continuing to rally against card check, opponents of labor reform make it easier for politicians seeking cover to say "I did not support card check, I stood up for secret ballot elections." Elections five or ten days after a petition is filed seem reasonable to the public. Having won the card check battle, opponents of reform should confront the real problem of an uninformed workforce voting on an issue deserving serious debate. Union allegations of worker intimidation and unlawful conduct during traditional election campaigns are correctly addressed by stiffer penalties for existing unlawful conduct, not quick elections. Labor ties employer intimidation to the length of time between petition and election. There really is no direct correlation except the duration of opportunity. Labor muddles lawful effective employer persuasion with unlawful threats. The former educates, the latter intimidates. Both can persuade employees to reject union representation, but lawful persuasion with legitimate facts and argument has a place in the debate. Labor's goal is to shut the employer out of the debate on selection of a representative. Only those who believe Labor's interests are congruent with all employees' interests can, with intellectual honesty, but still incorrectly believe shutting down employers' side of the debate is a good idea. Even mandated union access to company property and employees is less of an actual threat than elections being conducted so quickly as to preclude robust discussion of the adverse consequences of unionization.

Card Check is unpopular in Quebec

The Canadian Province of Quebec permits certification of unions based upon card check. According to a recent survey, 71% of those polled believed that the provincial government should amend the current law to require a secret ballot election. Among self-identified union workers 80% favored a secret ballot election. Of those surveyed 23% were union workers, 33% were non-union. The study inconsistently suggests both  44% and 47% were not workers. Seems like a lot of non-workers were polled.