My Photo

« "There Is A Better Way" | Main | Crimes & Misdemeanors »

December 19, 2008

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d834515c2369e2010536886ad3970c

Listed below are links to weblogs that reference Epstein's EFCA Hackery:

Comments

Nicely done; thanks, publius.

Constitution in Exile, anyone?

Epstein was something of a joke around U Chicago when I went there -- we all knew he was smart as a whip (goodness knows he spends enough time reminding everyone) but he takes absurd positions just to provoke reaction. He's a crank.

And yes, his arguments in this column are dumb. The First Amendment one makes no sense whatsoever -- your right to speak doesn't mean I have to give you advance warning whenever I speak -- and the Fifth Amendment one is, well, let's just say it's creative.

The really weird part is the scenario of the NLRB imposing draconian terms on employers in mandatory CBA arbitration. The NLRB is pretty employer-friendly. Neither side is going to want to get in front of that Board. As you said, publius, the real point of this provision is to force the parties to make a deal instead of running out the clock.

Hooray, an easy stand on principle for me.

Not all horrible policy is unconstitutional.

The EFCA is horrific policy because it attacks the rights and protections of the workers while being justified as balancing the unions against the corporations. It takes away secret ballot from workers because of the misdeeds of corporations instead of trying to deal with the misdeeds of the corporations.

But, not all really bad laws are unconstitutional.

...attacks the rights and protections of the workers while being justified as balancing the unions against the corporations. It takes away secret ballot from workers because of the misdeeds of corporations...

Wait. It seems like maybe this has been discussed before... I think I may have even seen something just now- Oh yeah:

...current law allows the employer to dictate how a union must organize. The EFCA simply reallocates that choice (card check vs. election) to the employees, where it belongs.

Nice job, Sebastian, in showing that not all misleading arguments made in bad faith need to appeal to a misunderstanding of the Constitution.

Bravo. Truly.

No, the EFCA reallocates that choice to the UNION. The employees don't get that choice until long after card check, and if I'm reading the statute interactions right they don't even get it until after the first contract negotiation.

Employees and unions are not interchangeable terms and are not interchangeable concepts. It is bad shorthand most of the time to think as if employee interests equal union interests or vis versa. They are concepturally aligned in many cases, but not enough that you can get away with treating them interchangeable.

It is especially bad when the question at hand is "should this union represent these employees?" For purposes of that question, union interests cannot be treated as being the same as employee interests. Stripping secret ballot in those cases can't be conceptually defended with the idea that the union acts in the employee's interest because whether or not the union is going to represent the employee is the very question being posed.

Sebastian:

if I'm reading the statute interactions right they don't even get it until after the first contract negotiation.

I don't think you are reading it right. If more people than not don't want a union, then card check won't come into play. This is not hard to understand, really. EFCA just superimposes a new procedure on top of the existing provisions that allow for an election if >30% want one. Unions that want to fight out an election when they have 30% - 50% support can still do so.

But please feel free to correct me with a reference to the bill's language if you would like.

Notice as well that Epstein doesn't bother to try to fight on this field. It's a little odd, really. Saying that discharge threats in the context of a union battle are a core protected free speech right is even weirder than the attempt to wrap patriotic gauze around an election procedure that's only about as old as the progressive attack on parties.

it's not a union until it's recognized, so i would say it reallocates to the employees

No, the EFCA reallocates that choice to the UNION.

Huh? Current system:

1. Workers sign cards saying they want union (in most cases, yes, a particular national union)

2. The Employer decides whether or not to honor their request immediately, or fight it by requesting an NLRB election.

3. An indeterminate period of time (often years), may pass, after which a collective bargaining contract may or may not be worked out, in which the employer may or not act in good faith.

4. IF a contract is ever signed, workers can hold a referendum on the union.

New system under the Employee Free Choice Act:

1. Workers sign cards saying they want union (in most cases, yes, a particular national union)

2. The Employer must honor their request, and recognize the union (if a majority of workers sign cards).

3. The union and the employer must work out a collective bargaining agreement in a reasonable length of time, or go to arbitration.

4. Workers can hold a referendum on the union (in possession of all the facts, since they now know roughly what the union will be able to do for them).

Now, where exactly am I treating workers and unions as interchangeable concepts?

"Epstein was something of a joke around U Chicago when I went there -- we all knew he was smart as a whip (goodness knows he spends enough time reminding everyone) but he takes absurd positions just to provoke reaction. He's a crank."

When I was at Chicago, I once asked Epstein (over lunch) what would be the first thing he would do if he were suddenly made emperor of the United States. His response? "Repeal the United States Code." And he wasn't kidding.

So, yeah ... what Trilobite said.

Also, as I noted in the previous thread on this topic, the choice of secret ballot election definitely appears not to be allocated to the employee:

I initally wrote:

Unless you are talking about something else (and I'm not an expert so I could be confused) this is the full text of the bill. It doesn't require anything like part of the card to offer a secret ballot option which then 30% of the people can choose.

You may be talking about Section 159(e) which would then mandate a separate election if on a separate petition 30% of the employees request it. That seems like a recipe for a mess especially if conducted in the company-free world that publius desires. Union focuses on high-pressure, short-time period card check with misleading information. It gets certified. Now any employee who wants to make an objection get his *first chance* to have a voice by agitating for a vote while the newly 'formed' union is right in the middle of its first contract negotiations under Section 3 of the EFCA.

I further wrote:

Actually I'm not convinced that the 30% rule is as you have stated it at all unless there is ALJ rulings or something that interpret the text beyond what it seems to be. The text of Section 159(e) is:

(1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 158 (a)(3) of this title, of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.

(2) No election shall be conducted pursuant to this subsection in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held.

It looks to me like this would play out as follows:

1) Union gets card check. It may or may not have been candid in the process, you don't seem worried about it. You also don't seem worried about a lack of even minor discussions by empoloyers. Dissenting workers have no say at this point.

2) Union has mandatory first contract negotiations under Section 3 of the EFCA. At this point there is no right under Section 159(e) because there is no "bargaining unit covered by an agreement between their employer and a labor organization"

Dissenting workers have still not had a chance for input.

3) Contract is completed within 90 days (unless it goes to arbitration, if it goes to arbitration dissenting employees STILL have no input). Dissenting employees are bound under the contract.

4) only now can they request a secret ballot. And they are going to have to do it publically and immediately after what may have been very nasty initial contract negotiations with a newly formed union bargaining unit.

Now again, I'm not an expert on NLRB procedures, so maybe they get around it somehow. But on the face of it, this looks like a really bad way to run things.

"it's not a union until it's recognized, so i would say it reallocates to the employees"

I know you wrote this without reading the comments from before, but could you respond in light of them?

Sebastian-

I think my last comment implicitly stipulates to your timeline completely.

So where is the part where I confuse workers with unions?

And where is the part where workers LOSE rights between the current process and the proposed one?

(Note I probably should have added something like "and workers assent" to the part in steps #3 about collective bargaining agreements, but I think what I wrote is a reasonable shorthand.)

Jack, you are being loose with the descriptions again.

The choice between card check and election is not being allocated to the employees.

A union which does not represent the employees at that time chooses whether or not they would prefer card check or an election.

It may now go to individual employees and personally solicit their signatures.

There is no check or monitoring as to what that non-representative-of-these-workers union tells these employees because it is a direct face-to-face interaction. Claims can be made which may or may not be true--we've seen untrue claims made even in the context of more formalized elections.

There is no forum for employees who may have legitimate arguments against this non-representative-of-these-workers union and they may not even be approached.

In fact employees who aren't interested in the non-representative-of-these-workers union don't get any input whatsoever at this stage.

Suddenly these workers find themselves bound to representation by a union which they have never voted for or against and which they never got to voice any objection to. The time, place and manner of this 'election' was chosen ENTIRELY by the non-representative-of-these-workers union.

Do they get to call a vote at this time? No.

Now we go through the collective bargaining agreement.

For the months in which this takes place do these dissenting workers have any say? No.

Did they get to vote? No.

Only AFTER the contract has been signed are they allowed to try for a vote. After all the hard work has been put in by the union. After all the negotiation has taken place. NOW, they are permitted to ask for a vote on whether or not the union ought to represent them. Surely you can see that this creates an even uglier situation between the employees and 'their' union than would have existed if all those issues had been hashed out at the beginning, before time had been spent on the negotiations.

"And where is the part where workers LOSE rights between the current process and the proposed one?"

They get forcibly represented by a union without getting to privately vote on it. Their 'vote' consists of cards, created by the union, provided by the union, signed in the presence of union organizers. If they want to say no, they must vote against the union with full notice to the union organizers that they are doing so.

The choice between card check and election is not being allocated to the employees.

It never was.

A union which does not represent the employees at that time chooses whether or not they would prefer card check or an election.

No they don't.

There is no forum for employees who may have legitimate arguments against this non-representative-of-these-workers union and they may not even be approached.

In fact employees who aren't interested in the non-representative-of-these-workers union don't get any input whatsoever at this stage.

To the extent that this is true, it is also true of the current system.

This strikes me like the Israeli-Palestinian conflict: there's nobody to root for here. The current system sucks, but I don't like the proposed replacement, either. I agree with publius that the current proposal is nowhere near as bad as what's in place today, but that, by itself, isn't enough to support it. How hard would it be just to reform the electoral process, to correct some of the problems that currently exist with it? It seems that reform of this nature is a better alternative than bypassing the election process completely. I'm not normally inclined to agree with Sebastian on much, but I agree that the card check method invites abuse/intimidation by the union rather than by the employer, as is the current way.

Imagine if you were to modify the referendum process in the same way. Instead of going house to house to get signatures to put an initiative on the ballot, you'd instead go house to house go get people to say "I'm in favor of proposition X"; and in this scenario, if you got a majority of registered voters to sign, the proposition becomes law, without ever going to an election. You'd probably call that undemocratic, and I'm inclined to think you'd be right.

I say modify the law so that a 30% card check results in a secret ballot election within 30 days (or some similar, tight time frame), with no exceptions.

Suddenly these workers find themselves bound to representation by a union which they have never voted for or against and which they never got to voice any objection to. The time, place and manner of this 'election' was chosen ENTIRELY by the non-representative-of-these-workers union.

Do they get to call a vote at this time? No.

And what negative consequences do they suffer during this time?

Now we go through the collective bargaining agreement.

For the months in which this takes place do these dissenting workers have any say? No.

Did they get to vote? No.

I believe they get to vote on whether they like the collective bargaining agreement...

Only AFTER the contract has been signed are they allowed to try for a vote. After all the hard work has been put in by the union. After all the negotiation has taken place. NOW, they are permitted to ask for a vote on whether or not the union ought to represent them. Surely you can see that this creates an even uglier situation between the employees and 'their' union than would have existed if all those issues had been hashed out at the beginning, before time had been spent on the negotiations.

No. I don't see that at all. In fact, depending on whether the contract is good or bad, it has probably largely solidified support for the union one way or the other. If 30% are still against the union, they're probably not alone.

And it seems unobjectionable to me for this vote to occur AFTER workers are aware of what concrete benefits they'll be getting, rather than being pulled from both sides with vague promises and threats before any deal has been made.

Suddenly these workers find themselves bound to representation by a union which they have never voted for or against and which they never got to voice any objection to.

They voice their objection by not signing, just as a majority of their coworkers evidently voiced their support by signing.

The time, place and manner of this 'election' was chosen ENTIRELY by the non-representative-of-these-workers union.

It is not an election. It's a petition. The place is obviously set. The manner is governed by federal law. Only the time is chosen - and I'm not sure how else you would have it selected. Should the employer get to choose when their workers can decide they want to organize? The government?

There is no check or monitoring as to what that non-representative-of-these-workers union tells these employees because it is a direct face-to-face interaction. Claims can be made which may or may not be true--we've seen untrue claims made even in the context of more formalized elections.

This is true of the current system as well, obviously.

The argument that things will be worse rests entirely on your completely evidence-free assumption that union-on-worker intimidation will be worse under majority sign up.

Among the other problems with his argument, Sebastian seems very worried that a potential union, with no direct influence over employees, is a serious threat to violate the law and intimidate workers into voting for it. At the same time, he seems unconcerned that the employer, with no greater effective controls on its activities and with direct influence over the workers won't break the law and engage in intimidation.

This collection of beliefs makes zero sense to me. Based purely on who has an interest in skullduggery, and who has the power to actually do so, employer manipulation is the larger concern.

How hard would it be just to reform the electoral process, to correct some of the problems that currently exist with it?

The fact that it has not been "reformed" in the nearly 50 years since the last major labor legislation (Landrum-Griffin) should tell you it is indeed HARD.

It seems that reform of this nature is a better alternative than bypassing the election process completely.

(1.) Pipe dream (see above). (2.) A willful misreading of the language of the Act, unless your meaning of the word "completely" is something less that "under any circumstances".

I say modify the law so that a 30% card check results in a secret ballot election within 30 days (or some similar, tight time frame), with no exceptions.

This ignores totally the context of employee-employer relationships in an open shop situation. Furthermore, the employer is still virtually free to trample the clear intent of the law--for example, fire known union sympathizers just before the election. The penalty? Virtually nil.

Labor lawyer Thomas Geoghegan via Sirota:

"Under current law, if you are fired for union activity, you can only take your grievance to the National Labor Relations Board (NLRB) - a byzantine agency deliberately made more Kafkaesque by right-wing appointees and budget cuts. Today, the NLRB takes years to rule on labor law violations, often granting victims only their back pay - a tiny cost of doing business.

. . . His proposal says rather than being forced to rely on an unreliable bureaucracy for protection, workers should be empowered to defend themselves.

The six words would do just that. Regardless of whether the NLRB is strengthened or further weakened, persecuted workers would be able to haul union-busting thugs into court. There - unlike at the NLRB - plaintiffs can subpoena company records and win costly punitive damages."

The above is addressed to those of you who advocate "reforming the existing system" in lieu of the EFCA. This reform would actually have some teeth in it.

Oops. My bad. Here's the policy change suggested by Geoghegan:

".....amend the Civil Rights Act to prevent discrimination "on the basis of union membership".

Apologies.

I agree with Sebastian that the legislation is likely to result in unions choosing to use the card-check procedure in nearly all cases. But I don't see that as a problem. The union will only obtain initial recognition if a majority of workers endorse it, and it will only keep recognition if it is able to resist decertification elections.

The objection that a minority of workers who did not sign are now represented by a union is one against unions generally - not against the card-check method. If that's your objection we need to have a different discussion.

As to the manner of making the choice, I agree that it's not an ideal system. Given the option, we might prefer an opportunity for each side to state its case in a deliberative setting that was free from coercion. But of course that option is unavailable.

It occurs to me (belatedly - I've never really been in this situation before, so apologies all round) that I should mention that I work in the headquarters of a large national union.

My words are my own, and my job isn't to spread EFCA talking points or anything. It's also fair to say that my career is safe regardless of EFCA's passage.

Hopefully my arguments stand on their own.

"...and it will only keep recognition if it is able to resist decertification elections."

Which, by the way, can be conducted via card check under current law. Perhaps Sebastian can rail against this injustice as well.

But he won't.

"EFCA just superimposes a new procedure on top of the existing provisions"

It absolutely does not! Card check was the law in 1949. It was upheld by the Supreme Court in 1969. There's nothing "new" about it at all. It was having it removed that was the revision!

[...] In 1969, Chief Justice Earl Warren delivered the majority opinion for the U.S. Supreme Court that upheld the use of card check. Warren stated, "Almost from the inception of the Act, then, it was recognized that a union did not have to be certified as the winner of a Board election to invoke a bargaining obligation; it could establish majority status by other means... by showing convincing support, for instance, by a union-called strike or strike vote, or, as here, by possession of cards signed by a majority of the employees authorizing the union to represent them for collective bargaining purposes.' The Supreme Court has consistently ruled in favor of card check and Warren cited prior affirmations in NLRB v. Bradford Dyeing Assn., 310 U.S. 318, 339–340 (1940); Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944); United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62 (1956)[3]
NLRB v. GISSEL PACKING CO.

Sebastian, in the world where we get to make law, I'll make you this deal: I'll give up card check if you're willing to agree to a law that makes it a significant criminal offense for any employer or manager who intimidates in any way any pro-union employees who seek a union.

Why is the wish to protect workers always, on your side of the fence, in the direction of seeking to protect workers for more or less non-existent, hypothetical, union bullying and intimidation, but there's no apparent concern whatever for the utterly widespread actual management anti-union intimidation that goes on in just about every workplace that isn't unionized and stands a chance of that changing?

If anti-card check folks were out there making proposals to deal with actual employee intimidation, they'd be a heck of a lot more credible. Meanwhile, it comes across awfully like concern trolling.

"There is no check or monitoring as to what that non-representative-of-these-workers union tells these employees because it is a direct face-to-face interaction."

Where's your concern about the lack of check or monitoring of actual management intimidation that is ultra common in reality?

Nicely stated Mr. Farber. You end by asking: "Where's your concern about the lack of check or monitoring of actual management intimidation that is ultra common in reality?"

You will never, ever, see this concern expressed by conservatives. Employers intimidating employees is just free speech. Union organizing is, at heart, force.

Their entire argument is one of bad faith.

Bobbyp:

Furthermore, the employer is still virtually free to trample the clear intent of the law--for example, fire known union sympathizers just before the election. The penalty? Virtually nil.

So rather than remove the secret ballot from an employee who did none of those things, why don't you pass a law creating a real penalty?

His proposal says rather than being forced to rely on an unreliable bureaucracy for protection, workers should be empowered to defend themselves.

The six words would do just that. Regardless of whether the NLRB is strengthened or further weakened, persecuted workers would be able to haul union-busting thugs into court. There - unlike at the NLRB - plaintiffs can subpoena company records and win costly punitive damages."

You don't provide a link to the actual proposal, but as outlined in your quote I'm certainly not against it. That proposal empowers workers and directly addresses the problems you complain about, rather than taking away the protection of secret ballot rights from workers who haven't done anything.

I hate to repeat myself, but can someone please offer an argument about the secret ballot which either

A) Explains why you think it is normally a good thing and what it is for, but how those concerns are unimportant in this case.

OR

B) How it really isn't all that important and how you wouldn't mind taking it away in all sorts of other arenas where it is normally used--say elections for non-union Congressional representatives or for President of the United States.

All the attempts I've seen at A) have boiled down to "corporations can push people around a lot and we have to fight that" which is fine so far as problem identification goes I suppose, but really poor at actually justifying taking away a pretty normal election mode. When I ask for specifics, I tend to get things like "the election period is too long so it give employers too much time to pressure people" which leads to really obvious replies like "Hey couldn't we try shortening the election period?"

I guess I just don't ever see the connection between the problem and the dramatic 'solution'.

Terrorists are a nasty threat THERFORE we must abandon normal search and seizure rights anyone?

Terrorists are scary THEREFORE we must invade Iraq?

"Sebastian, in the world where we get to make law, I'll make you this deal: I'll give up card check if you're willing to agree to a law that makes it a significant criminal offense for any employer or manager who intimidates in any way any pro-union employees who seek a union."

We cross-posted but see above.

I'm not going to give you the infinite leeway of "in any way" because I'm well aware of how whiney Americans can be. But for things like firing people, threatening to fire them, demoting them or engaging in punitive transfers, I have no problem with toughening the laws including making it a crimminal offense.

You write as if you expected a different answer...

You don't provide a link to the actual proposal....google "EFCA + Thomas Geoghegan".

My broken record in response to your broken record: Unions can be decertified via card check. You ignore this utterly, and one can only conclude that you are all for "not using the SACRED SECRET BALLOT" as well.

Therefore, I suggest you answer your own question in this instance to help overcome the self-imposed rhetorical rut you are in, and you will never find the need to ask such an irrelevant either/or question ever again.

Sebastian, all of the points that you make about the dissenting (anti union) workers losing their rights should be reversed.

In the real world, a substantial majority of workers not represented by a union would like to be. Survey after survey confirms this.

So when workers want to join a union either by ballot or card check,

"Do they get to call a vote at this time? No."

They have to wait for months and endure management harassment, intimidation, illegal firing of union activists, threats to close workplaces, etc...

"For the months in which this takes place do these dissenting workers have any say? No."

Replace "dissenting" with union favoring and this describes the current state of affairs.

Right now, management holds all of the power. EFCA only gives a few cards to workers.

If EFCA is enacted, and after the card check a union is recognized immediately, the workers have some recourse when management tries to intimidate or fire union activists through the contract. Now, if a worker tries to organize his/her workplace, management can retaliate against (and make an example of) that worker with defacto impunity. The NLRB takes years to even consider worker claims and during that time, there is no paycheck for the worker. Who can afford to fight a large company with paid lawyers after being unjustly fired?

If you want a real world example, look at Smithfield in NC.

"The UFCW had tried to win the right to represent workers since the plant -- which processes up to 32,000 live hogs a day -- opened 16 years ago." AP news feed

"[Smithfield] Management used such extensive intimidation tactics that both elections were thrown out by the National Labor Relations Board. In 2006 the NLRB forced Smithfield to rehire workers fired in 1994 for union activity and pay them $1.1 million. That was a victory for the union, but workers on the line could also easily see that Smithfield lawyers kept union supporters out of work for over a decade, in violation of the law." American Prospect

"My broken record in response to your broken record: Unions can be decertified via card check. You ignore this utterly, and one can only conclude that you are all for "not using the SACRED SECRET BALLOT" as well."

Your conclusion is wrong. Card check is a horrible method of voting. I oppose it as a method for determining representation outcomes.

Also I think you are wrong. As I have already quoted above:

(1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 158 (a)(3) of this title, of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.

Are you referring to some other law?

"Therefore, I suggest you answer your own question in this instance to help overcome the self-imposed rhetorical rut you are in, and you will never find the need to ask such an irrelevant either/or question ever again."

This and your other accusation of bad faith are noted. Now that you are the one who appears to be wrong, how will you respond? I'm sure it will be instructive.

Gary: The term "in the statute" was implied. But point well taken.


Terrorists are scary THEREFORE we must invade Iraq?

Assumes proponents share the belief that the cure is "drastic". False.

Next.

Card check is a horrible method of voting. I oppose it as a method for determining representation outcomes.

Why?

(You're also aware that card check is in fact current law, if the employer chooses it, right?)

All the attempts I've seen at A) have boiled down to "corporations can push people around a lot and we have to fight that" which is fine so far as problem identification goes I suppose, but really poor at actually justifying taking away a pretty normal election mode.

For about the eleventieth time, the only thing being taken away here is from employers.

Now that you are the one who appears to be wrong, how will you respond? I'm sure it will be instructive.

Sebastian. I stand before you in abject error.* Learn anything?

*"but it still moves" (stamps foot).

but wait Sebastian,....look here:

http://theunionnews.blogspot.com/2008/09/nurses-to-decertify-cna-by-card-check.html

Hmmmm? Apparently there are TWO ways to obtain decertification? Still looking here for more. Anybody out there can help!

CS: accusing another commenter of arguing in bad faith violates the posting rules. Please don't do it.

This is less clearly true of bobbyp, since his statement was not explicitly about Seb, but still.

Seb, this is the system you are defending...

a note from Ezra Klein:

Cornell scholar Kate Bronfenbrenner, who surveyed hundreds of organizing campaigns and found:

• Ninety-two percent of private-sector employers, when faced with employees who want to join together in a union, force employees to attend closed-door meetings to hear anti-union propaganda; 80 percent require supervisors to attend training sessions on attacking unions; and 78 percent require that supervisors deliver anti-union messages to workers they oversee.

• Seventy-five percent hire outside consultants to run anti-union campaigns, often based on mass psychology and distorting the law.

• Half of employers threaten to shut down partially or totally if employees join together in a union.

• In 25 percent of organizing campaigns, private-sector employers illegally fire workers because they want to form a union.

EFCA has its problems, but pretending that it's somehow a perversion of workplace democracy as compared to a world in which 25 percent of organizing campaigns see a worker fired is absurd. It's as if political candidates had the power to revoke your citizenship and take away your Social Security if you voted the wrong way. Would that really be a form of democracy worth preserving?

Bobbyp you seem to be trying to lose the war by winning the battle.

Query, does CA operate under different rules? Because card check at 50% isn't the national standard right now, which is why we are debating about it, right?

But, thank you for providing an illustration of union pressure:

According to your link:

Brundage said the employee group has stepped up efforts to decertify the union recently after nurses at Fremont and Rideout hospitals began asking about the status of the election to decertify.

"Many are willing to sign because they know they can remain anonymous," she said. Some nurses "don't want pro-union people to know they are signing because pro-union nurses are very vocal and intimidating."

There are two ways to decertify a union, according to the National Labor Relations Board. The first is to obtain signatures of 30 percent or more of employees in order to hold an election to decertify. That number was achieved in October.

Brundage said the union has filed several unfair labor practice charges to halt the process.

"As long as ULPs are filed, the labor board can't conduct an election," she said. "CNA is still holding nurses hostage by filing these ULPs."

What? A union would try to AVOID a quick vote by stringing things along? Surely you're shocked?

Union organizers are described by other workers as intimidating?

Yikes. Is that an isolated incident? You would almost think that the union was acting just like a company, with its own interests in mind instead of the employee's.

Now I think that decertifying by card check is just as bad as certifying by card check. It can be done without really airing the issues for all parties and facilitates misinformation.

So they should have a quick election. Instead of changing the national law to card check, I wouldn't allow the delaying tactics.

"Would that really be a form of democracy worth preserving?"

You and quite a few people on this thread seem to be falling into some classic argumentation fallacies. See here

If you say you prefer option A to option B, you also prefer A to any option C.

...

If you dislike a proposed solution to a certain problem, you don't care about that problem.

...

If you oppose one end of a continuum, you support the other end.

I don't like certain actions that companies take against unions. That doesn't mean that I think any old reactionary response to that is justified or wise.

As a general organizing principle I'm not thrilled with fighting one organization's abuse of power on individuals by empowering a separate organization to abuse power on the same individuals in other ways. That isn't a great way of dealing with things. Especially when problems like "too much time before elections" seem like they have rather obvious alternative solutions like "take less time before elections".

Seb--I wouldn't allow the delaying tactics.

You and what army? As it stands, management has all the power. Would it be the toothless NLRB? The oh so effective congress? I know, management will cheerfully give up their delaying tactics, stop intimidating and firing workers, and allow a fair election, confident that workers will vote against their best their own best interests? Riiiight....

Again, clear majorities of workers want to join unions.

To the merits: Seb: I like secret ballots, though I don't think they're the alpha and omega of civic life. (E.g., my department votes on a lot of things without them, and that seems OK to me.) I would be happy if there were some third alternative that preserved the secret ballot while also producing the result I care about, namely making it much harder for employers to engage in union-busting. (And also making any penalties for doing so not depend on government enforcement agencies, which, I think experience shows, might as well not exist when Republicans are in power.)

I don't know enough to know whether some third alternative is feasible. (If enough workers sign cards calling for one, a snap election with secret ballots is held within 24 hours?) If it is, I favor it. If not -- if we have to choose between the present set-up and card check -- I favor card check. Here's why:

The secret ballot, to me, is something with instrumental value: it is good insofar as it tends to protect people from intimidation. Under the present system, people are not protected from intimidation -- it exists throughout. The secret ballot is also good insofar as it helps make elections fair. But the present system does not produce fair elections.

Rather, the present system seems to me to be one which is just pervaded by serious, major injustices. The alternative -- card check -- would make the existing massive injustices much more difficult to perpetrate -- and insofar as one thinks that union-busting exists precisely because the present system is so easy for employers to game, card-check would also (I would think) make employers less likely to be tempted to game it in the first place.

Under card check, as under most proposed new systems of doing anything, one can point to new kinds of injustices that might take the place of the old ones -- in this case, union intimidation. There's evidence that these injustices don't actually happen under card check (Or rather, not more than they do under secret ballots). Also, as Rich Yeselson points out in an email to Ezra:

"intimidation as a technique for organizing is a stupendously moronic business model, even for the labor movement: After one year, any union can be "decertified" by a simple majority vote of its workers. A workforce that is coerced into joining a union is one that cannot wait to get rid of that union--decertification, under those circumstances is inevitable, and all the time and money that the union invested to organize the worksite is thrown away. Really dumb!!!"

So: the evidence is that intimidation by unions is not a problem, and the way things are set up, there's an obvious reason for unions not to browbeat workers: they can be decertified a year later.

That means, as I see it, that we have on the one hand a completely broken system in which intimidation (and worse) are endemic, and an alternative that would substantially remedy these existing injustices, and under which there might, hypothetically, be problems, though both evidence and the design of the alternative suggest otherwise.

I choose the alternative.

I'm also in favor of serious penalties for union-busting (and coercion by unions.) However, given the history of the last few decades, I am not inclined to put my faith in reforming the NLRB and the laws that govern it alone. Likewise, if someone convinced me, back in 1938, that a reformed Nazi party stripped of its antisemitism would, in theory, be the best protector of the interests of German Jews, that would seem to me to be of purely theoretical interest. (Note: I am not comparing any union-busting activities to the Holocaust. I am just suggesting that sometimes, an organization's actual history makes it impossible to say: but look, if it was wholly reformed, relying on it would be best!)

Query, does CA operate under different rules? Because card check at 50% isn't the national standard right now, which is why we are debating about it, right?

I don't know the rules in CA, but it's an interesting point you raise- card check is the law right now IF an employer chooses.

However, technically only a "substantial" number of cards need to be signed. Not sure if there's case law or something on that attaching a more specific guideline, but that would suggest to me that in fact a workplace could be unionized with only, say, 40% signed cards - if the employer chooses.

Seb, since you don't offer any other solutions, by default, you must then support the status quo, which sucks. What progressive solutions would you propose instead of EFCA? Without unions, workers have virtually no enforceable rights in the workplace.

Government has been totally inept and ineffective in enforcing labor laws. As we have seen during the Shrub administration with Elane Chao as the current sec of labor, enforcement is dependent on the good faith of the executive branch. Clinton was ham strung by the repiglican congress during his administration and he wasn't really a progressive on labor issues anyway.

Depending on politicians to protect worker rights has been a failure in the US over the last 40 years. Give me a union over wimpy government oversight to fight for my workplace rights anytime.

And quicker elections are hardly a solution when, "In 25 percent of organizing campaigns, private-sector employers illegally fire workers because they want to form a union."

Would you support million dollar fines and triple back wages when workers are unjustly fired for organizing?
Significantly strengthening the NLRB?

All of the significant advances for working people (40 hour week, paid vacation, healthcare, health and safety regulations, ect.) have come from union organizing and pressure. Take unions away, and these go away. We are already seeing this with the deterioration of health benefits as union membership has declined.

Seb, since you don't offer any other solutions, by default, you must then support the status quo, which sucks. What progressive solutions would you propose instead of EFCA? Without unions, workers have virtually no enforceable rights in the workplace.

Government has been totally inept and ineffective in enforcing labor laws. As we have seen during the Shrub administration with Elane Chao as the current sec of labor, enforcement is dependent on the good faith of the executive branch. Clinton was ham strung by the repiglican congress during his administration and he wasn't really a progressive on labor issues anyway.

Depending on politicians to protect worker rights has been a failure in the US over the last 40 years. Give me a union over wimpy government oversight to fight for my workplace rights anytime.

And quicker elections are hardly a solution when, "In 25 percent of organizing campaigns, private-sector employers illegally fire workers because they want to form a union."

Would you support million dollar fines and triple back wages when workers are unjustly fired for organizing?
Significantly strengthening the NLRB?

All of the significant advances for working people (40 hour week, paid vacation, healthcare, health and safety regulations, ect.) have come from union organizing and pressure. Take unions away, and these go away. We are already seeing this with the deterioration of health benefits as union membership has declined.

I'll go along with a secret ballot under the condition that the employer has no involvement at all. I'm not just talking about not intimidating or firing employees. They do not get to comment on it in any way.

It is not their business. The union does not represent the company. The company is not one of its constituents. Allowing the company a voice in the process is akin to giving citizens of a foreign country a voice in the US presidential election, if said foreign citizens had the power of employment over all Americans. Foreigners are not allowed to contribute money to US candidates. Companies should not be involved at all in unionization questions.

hilzoy:

To be fair, I read C.S.' comment as calling Epstein's argument a bad faith argument. I don't read him as accusing Sebastian of doing so. (I do, however, read it as being highly critical of Seb, which last I checked, isn't against the rules.)

tgirsch: Ah. If so, then I retract my objection. If he did direct it at Seb, however, I don't.

"How it really isn't all that important and how you wouldn't mind taking it away in all sorts of other arenas where it is normally used--say elections for non-union Congressional representatives or for President of the United States."

Have you missed all the endless comments I've made here over the years on how I prefer caucues to primaries, Seb?

The fact is that I'm not worried about union intimidation of workers, because so far as I know it's almost entirely non-existent in the last couple or more decades. Whereas anyone who has ever worked in a service industry can tell you just how endless the threats of firings and closings and so on are from management.

I'm not worried about imaginary threats; I'm worried about actual reality. If unions actually start intimidating workers into voting for unions they don't want, I'll start worrying about the issue.

Meanwhile, I'm about only slightly less worried about UFO abduction.

"...which leads to really obvious replies like 'Hey couldn't we try shortening the election period?"

No solution at all, since management doesn't need much time to say "if you people vote for a union, you're fired," or slightly less overtly, "look at all the branches that wind up closed when people push for unions," or just make it clear in not so many words that You Will Live To Regret It.

What it also frankly tends to comes down to is that you either pretty much believe that unions are generally a good thing, or you believe otherwise. I belive unions are generally a very good thing indeed, particularly in in this decade. YMMV, of course.

Otherwise, as I said, I'm perfectly open to other solutions that actually mostly prevent corporate managerial/intimidation against workers voting for unions; let's pass something else effective, and I'm fine with giving up card check: the point is to prevent intimidation, and stop making it so incredibly difficult to form unions/locals, and so unbelievably easy for management to treat workers like cannon fodder. Card check is just a tool in service of that goal, but it's the goal that's important.

"You write as if you expected a different answer..."

I'm fine with your answer: excellent. Now we just have to get elected to Congress. (Also, work on OCSteve, willya? ;-))

"... how I prefer caucues to primaries, Seb?"

Caucuses, that is.

"As a general organizing principle I'm not thrilled with fighting one organization's abuse of power on individuals by empowering a separate organization to abuse power on the same individuals in other ways."

What I don't get is how unions could possibly mirror employers in such a way: employers have near-total control over the workplace and workers, within the limits of not-remotely-very-restrictive laws (people can't be fired for certain bigoted reasons, and criminal law can't be violated; there's not much more to it in America, absent union contract protection, or individual contracts, which aren't available to common work people).

Unions, on the other hand, can what? Pro-union people can make ugly faces at people who disagree with them? Make nasty remarks? What else? How on earth are these two sides remotely comparable? It's not as if unions are (in all but extremely rare cases these days) run like Jimmy Hoffa's Teamsters any more. There's not much leg-breaking going around, is there? Or am I just missing all the news of that sort of thing as other than a very rare exception in 21st century America?

gnawdoow (and anyone else, for that matter), if you're going to quote someone you're responding to (always a good practice), possibly you could please use quotation marks, or some kind of quoting, blockquoting, or set off? Quotation marks are really easy to use. Thanks!

gnawdoow , "Seb, since you don't offer any other solutions, by default, you must then support the status quo, which sucks."

What in the world are you talking about? I've mentioned criminal penalties for illegal firings. I've mentioned shorter mandatory election periods. And even if I hadn't, opposing bad methods isn't the same as supporting the status quo. I could be against wife-beating AND against the removing the prosecution's burden of proof for punishing it.

Hilzoy, Ezra is horribly misusing statistics in your cite. This is classic self-selection bias. In the current system, you aren't very likely to be under card check unless you have a relatively uncontested union election--the employer will certainly attempt to force a balloted vote if they are going to resist. Ezra then expresses surprise that there seems to be less acrimony in the card check elections, less pressure from the unions and less pressure from the companies.

That is rather obvious because he is saying that in less contested elections (where employers aren't strenuously resisting the union) tensions are lower. Isn't that just short of tautological?

Second, there is less union pressure NOW because we are in a legal environment that isn't amenable to union pressure. We've seen in the past both recent and slightly more distant that unions are perfectly willing to use all sorts of intimidation, up to and including physical threats and murder, so it isn't just a theoretical possibility.

Third, the NLRB comment seems to prove too much. If it really is so weak and so easily manipulated by corporations, what is the alleged advantage of having a 'union' anyway? The NLRB is the main enforcer of union grievances anyway. If it is so useless at enforcing laws even when used by a Democratic administration, organizing isn't helping you very much anyway.

"To be fair, I read C.S.' comment as calling Epstein's argument a bad faith argument. I don't read him as accusing Sebastian of doing so. (I do, however, read it as being highly critical of Seb, which last I checked, isn't against the rules."

I don't think that is likely, because "Nice job, Sebastian, in showing that not all misleading arguments made in bad faith need to appeal to a misunderstanding of the Constitution." can't be talking about Epstein's argument unless he thinks Epstein's argument is valid, which I doubt.

gnawdoow , "Seb, since you don't offer any other solutions, by default, you must then support the status quo, which sucks."

What in the world are you talking about? I've mentioned criminal penalties for illegal firings. I've mentioned shorter mandatory election periods. And even if I hadn't, opposing bad methods isn't the same as supporting the status quo. I could be against wife-beating AND against the removing the prosecution's burden of proof for punishing it.

I don't agree with gnawdoow that you necessarily support the status quo, even if you had no alternative solutions to offer.

Even so, if those are the only alternative remedies you see, note that it's woefully inadequate. As Gary said, it doesn't take much time at all for the employer to make threats (and even make good on them). And the problem with the illegal firings is not so much that they're not against the law, it's proving it.

That is rather obvious because he is saying that in less contested elections (where employers aren't strenuously resisting the union) tensions are lower. Isn't that just short of tautological?

This is the whole point. When employers don't (or are unable to) bitterly resist elections, tensions all around are lower.

And yes, there's some problem with selection bias in the voluntary US history, but you still have to deal with the remarkably smooth history of card check internationally (e.g., Ontario).

Besides, selection bias explains reductions in employer-on-worker intimidation, but does not adequately explain the relative lack of organizer-on-worker intimidation seen in card check procedures.

OK, as much as I dislike this badly named POS I have to agree with you here. I’ll just state that and not even read the comments or else I won’t be able to leave it at that.

Posted by: jack lecou:
"It occurs to me (belatedly - I've never really been in this situation before, so apologies all round) that I should mention that I work in the headquarters of a large national union.

My words are my own, and my job isn't to spread EFCA talking points or anything. It's also fair to say that my career is safe regardless of EFCA's passage.

Hopefully my arguments stand on their own."

Don't worry; Sebastian is a corporate lawyer, and from the voluminous posts on any union-related thread, he's probably a (anti-) labor corporate lawyer.


Hilzoy writes: "This is less clearly true of bobbyp..." Less clearly? My remarks were specifically directed to a line of rather common conservative argument that I claimed is essentially one of bad faith. My claim may be true or false. In the initial post, Publius asserted Epstein wrote "a highly misleading op-ed made in bad faith."

If Mr. Epstein posted one or more replies, would that be grounds for banning Publius?

I know you insist on keeping it civil, and I do admire that. However, further clarification generally enlightens.

Thanks.

"Don't worry; Sebastian is a corporate lawyer, and from the voluminous posts on any union-related thread, he's probably a (anti-) labor corporate lawyer."

Nope, while I'm reluctant to go into deep detail, I have absolutely nothing to do with unions or the types of issues you would think of as 'labor'. My job involves disclosures to the SEC, contracts with other companies, and managing lawyers in other states as they defend against lawsuits (non-labor).

"Don't worry; Sebastian is a corporate lawyer, and from the voluminous posts on any union-related thread, he's probably a (anti-) labor corporate lawyer."

That hardly follows; a number of us post voluminously on a bunch of legal issues without even being lawyers. Ones interests and opinions need hardly follow one's work.

I would note that Seb has nothing to say about the actual example of owners violating rules for years with relative impunity in the Smithfield case. The fact is unions provide the support for workers to make corporations obey the law as well as advocating for more worker friendly laws.

"What in the world are you talking about? I've mentioned criminal penalties for illegal firings. I've mentioned shorter mandatory election periods. And even if I hadn't, opposing bad methods isn't the same as supporting the status quo." Seb

Seb, without proposing any meaningful ways to enforce the criminal penalties, through say union representation to protect workers and represent them in grievance filings, you perpetrate the status quo, whether you support it or not.

Just to reiterate a point related to the original post, all it really had to say was, "Richard Epstein made an anti-EFCA argument which assumes as a premise his view of the takings clause. His view of the takings clause, as he happily acknowledges, means that almost all federal legislation is unconstitutional."

The comments to this entry are closed.

Whatnot


  • visitors since 3/2/2004

April 2014

Sun Mon Tue Wed Thu Fri Sat
    1 2 3 4 5
6 7 8 9 10 11 12
13 14 15 16 17 18 19
20 21 22 23 24 25 26
27 28 29 30      
Blog powered by Typepad

QuantCast