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March 22, 2009

Comments

Card check legislation, remember, isn’t about the card check. It’s about correcting employer discrimination and retaliation.

No, it's about getting more people unionized.

If a law is passed that doesn't correct employer discrimination, but it gets more people unionized, let's go. If a law is passed that doesn't cut down on employer retaliation, but it gets more people unionized, let's go. If a law is passed that corrects employer discrimination and retaliation, but it doesn't get more people unionized, why waste our time?

You will hear much bleating from the natural opponents of unions about how card check is not the best way to go about unionization. Who gives a sh*t what those people say? They could just be honest and say they hate unions. How about it?

i'd quibble with that a bit -- i think the HOPE is more unionization. but the true purpose of the bill is basically procedural -- you're allowing those who want to unionize the procedural ability to do it. they're still free to decline if they want -- it's about choice

I agree with you so far as it goes, but I've yet to see a proposal that really makes #2 stand alone very effectively.

EFCA increases penalties, of course, but it doesn't really address what happens when Republicans run the NLRB, or even when they don't. The real problem is getting a judgment in the first place, and getting the harm remedied in a timely manner, which is really hard to do. It's often very difficult to prove something like punitive termination in the first place, and the appeals and delays can drag out for years.

In some ways, increasing the penalties might just make it worse by raising the stakes and making "O no, we are punishing these poor companies out of business" a tractable political argument.

That said, I think it's possible that some kind of card-check-triggers-an-immediate-election system might be a workable substitute for #1, if it's a necessary political compromise, but I hope #1 is not dropped entirely. You absolutely need election reform.

I posted the following on Benen's, and am mildly curious how out in left field I am.

I know nothing about unions either in my country or yours but confess the prejudice that in Canada it is the unions that have the unfair advantage. I remember a friend, a part-time employee at an organization undergoing a union drive, deeply distressed, feeling the union was providing misleading information, and under our applicable law, the employer was not allowed to respond.

Each side has an incentive to cheat; therefore the importance of rules that minimize cheating, and are as fair as possible. The goal should be to provide a level playing field, not unfairly favour one side or the other. How about some or more of the following.

1. union gets x% (40 or 50%) of employees to sign desiring union vote, and presents to company.

2. vote must be held no less than 30 days nor more than 60 days after step 1.

3. During period must be at least one meeting with Union and management representatives present to state case and answer questions- right to respond by both sides. Both sides right to review all written material prior to distribution and most include any response from other side.

4. During the period management cannot fire or demote anyone for any reason without consent of union official.

The other thing, seems to me the rules should be as automatic and simple as possible so that the fewest bureaucrats as possible are necessary to make it work.

i'd quibble with that a bit -- i think the HOPE is more unionization. but the true purpose of the bill is basically procedural -- you're allowing those who want to unionize the procedural ability to do it

They have the procedural ability to do it now, but under some people's value judgements - including mine - not enough of them do it. So let's make it easier to do, and we'll get more of them to do it.

If I thought card check would result in fewer companies getting unionized, I would be against it, it's that simple.

It's that simple on the opponents' side too, they hate unions, but they aren't always honest about it.

"And that’s the whole point of card check – it’s a means to escape a “secret ballot” system that is rotten to the core."

If, by "rotten to the core", you mean unions don't automatically prevail, sure. Not if you mean anything else by it.

Preserving the secret ballot is an issue so clear, that I have nothing, NOTHING, but contempt for anyone who rationalizes depriving employees of it. You want to lower the threshold for secret ballot elections? Bring them about sooner? Cool. Bypass them? Rot in hell. Might as well have proposed supplying union organizers with free lead pipes, so far as I'm concerned.

The proposal is that toxic as far as I'm concerned.

Preserving the [right of employers to prevent employees from unionizing] is an issue so clear, that I have nothing, NOTHING, but contempt for anyone who rationalizes depriving employ[ers]s of it.

Fixed that for you. Toxic, huh?

I said EXACTLY what I meant.

I think some people here just can't cope with the idea that there's a sizable portion of employees, often a majority, who don't want to be in a union. You think it's not really true, or it's some kind of false consciousness, or maybe you just think that they're some kind of class traitors. But when it comes to union organizing, you're always in favor of it, and just take it for granted that, in a perfect system, the union would always prevail. And their failure to do so in any given instance is all the evidence you need that something is wrong.

Well, you probably figure Democrats should always win elections for public office, too. Is the secret ballot there the next target?

I'm with Brett. Unions are not about choice, because once a Union is formed, I have no choice as to whether or not I'm a member (unless I live in a small handful of states with laws that allow me to opt out). Even in Right to Work states, Unions are real bad about informing employees about their right to refuse Union representation, and some Unions turn a blind eye to harassment and intimidation.

Think I'm full of it? I work in WA state, when I started my job, I was told I had to join the union, and my only option was to be a Beck Objector (Union still gets my money). No mention whatsoever of other options, like religious objector (I'm still in the Union, but they no longer get my money as long as I send the equivalent of my dues to a charitable organization). I finally learn of religious objector status from a fellow employee who is sick of the union being petty and stupid, and I also learn that the Union demands excessive levels of proof of charitable donations, and the Union legal team is all too happy to make harassing and threatening phone calls and personal visits to you.

Unions are not about choice, they are about forced membership and forced dues payments.

Wait, when did Republicans become concerned about the integrity of elections?

Unions are about equalizing the power between workers and managment. Without a union, it's individual workers trying to negotiate with managment, which is a completely uneven playing field. Managment has more power, more information, and more coordination. Managers can play the employees off against each other, relative salaries are nominally secret (or contractually secret), so the information and power asymmetry all favor managment.

And by a striking coincidence, average wages for workers have been nearly flat since the Republican attacks on unions took power in the 1980s. Meanwhile, corporate profits and managment pay have soared. Funny, that. Must be a complete coincidence.

Brett: I think some people here just can't cope with the idea that there's a sizable portion of employe[r]s, often a majority, who don't want [their employees] to be in a union.

Fixed that for you. Hey. That's okay. Don't thank me.

MadRocketScientist: As I understand it, the US Constitution prohibits forced union membership, which has been confirmed by case law. What is commonly required, however, in a workplace where the union will be negotiating on your behalf with management, that you pay the union an agency fee, which is of course less than full membership. Only a freeloader or a scab would object to this: a freeloader because they wanted the benefits of union negotiation for free, a scab because they wanted to be able to undercut their fellow workers by offering to work at a reduced wage/fewer benefits.

Which are you?

EFCA does NOT eliminate secret-ballot elections, and people should really stop going around saying that. It gives the choice of whether to hold a secret-ballot election to the employees rather than the employer. Unless you think employers are a better judge than employees of what rights employees should have and exercise, why it this a problem?

Jes, while I'm sympathetic to your point of view, I think you're straying a bit from the "be reasonably civil" guidelines here, and are thereby weakening your case.

“Card check” voting isn’t an end unto itself. It’s a means to avoid employer retaliation. I don’t think any union would have a gripe about secret ballot elections if they happened quickly, were free from retaliation, and took place on a level playing field.

I'm not sure this is entirely true. Otherwise what we'd be trying to implement is a much more expedited system for secret ballot elections, which seems very attractive to me.

I think the history of American unions suggests that there are at least some which have been perfectly content to use social pressure or intimidation to try and organize. That's against the backdrop of vastly more powerful and vicious intimidation and bullying from employers, I agree. I'm strongly in favor of reforming the current system so that unionization voting is easier, quicker and union advocates are far more secure and protected in their places of employment.

However, at least some card-check advocates are pretty mindful that all things being equal in a highly expedited, retaliation-free balloting system, a public ballot would be far more likely to produce a pro-union vote than a secret one. If I'm a worker and I have misgivings about a particular drive to unionize, I'm taking a big risk to publically identify myself as a person with misgivings if I think there is a reasonable probability that the drive to unionize will succeed.

So I think now_what is basically right, that this is ultimately not really about a particular vision of process: it's about trying to make unionization happen more often, by whatever means. I don't think now_what is right that to have some misgivings about that is to hate unions. At the least, it's possibly to be uneasy about the actually-existing union movement as it stands in the United States while still being very strongly committed to unionization as an ideal, and to believe that the way to get better unions is *partly* to reform the processes by which unionization happens and unions are organized.

If, by "rotten to the core", you mean unions don't automatically prevail, sure. Not if you mean anything else by it.

No. we mean that the system is arranged to allow employers to drag out the process almost indefinitely, even when it is quite clear through card check and--eventually, when and if they're finally held--Secret Ballot Elections that the employees want a union. They use the delay to intimidate, fire, and lie to the their employees.

Rotten to the core.

Incidendally, the Secret Ballot Election is not a right of employees under the current system, it's a right of employers so they can delay long and have more time to harass and lie to workers. The existing law actually allows majority sign up - but only if the employer allows it.

And no one has showed me how majority sign up isn't a perfectly democratic way for a community to decide to organize. It's already the first step in a unionization effort. Why should workers then always be asked, "are you really, really sure?"

In companies (e.g., AT&T) or jurisdictions (e.g., several Canadian provinces, at least until recently) where card check is the norm, there's no record of violence or abuse by unions. Some units organize, some don't. It's fine.

(Your lead pipe comment would be almost slanderous, if it weren't so comically out of touch with what union organizing actually is. I know union organizers, I work with them, and their names are almost invariably something like "Michelle", not "Vinny". They don't carry lead pipes, they carry brochures.)

"EFCA does NOT eliminate secret-ballot elections, and people should really stop going around saying that. It gives the choice of whether to hold a secret-ballot election to the employees rather than the employer."

That's only 'true' if you are determined to conflate the employees with the union seeking to organize. Once the union has a majority of cards, IT, not the employees, decide whether there's an election.

I think the larger idea here is to fix the labor market. Right now, outside of a relatively few professions, it's actually very hard to rate the worth of a given employee's contribution. So employers have every reason to talk down the rank-and-file, and every reason to talk themselves up.

Iow, Galbraith is right about 'countervailing forces' and all the nastiness that implies. But this is true in large part because they operate in a rather opaque environment.

Unionization is addressing only one side of the problem, btw. It's true that median wages have to go up. But as a corollary, compensation for the people at the top have to come down. Offhand, I can't think of an effective tool to accomplish this, other than tinkering rather ham-handedly with the tax code.

Publius illustrates why binding arbitration is a bad idea.

He says, "The EFCA compromise being floated is a promising, if still inadequate, development. It does, however, illustrate the importance of strong opening bargaining positions and sustained political pressure. Both are starting to bear fruit." In other words, ask more than you expect to get (strong opening bargaining position), hold rigidly to it (sustained political pressure) and then the arbitrator will split the difference and you'll get what you want.

He looks at it like binding arbitration is the only way you can get employers to bargain in good faith. Yet, in reality, it will enable the employees to argue in bad faith, knowing that if they hold out the arbitrator is likely to take a middle position.

He says, "The EFCA includes the binding arbitration requirement because companies often run out the clock to avoid having to negotiate with a certified union. I’m not sure binding arbitration is the only possible way to get employers to negotiate in good faith, but it’s the best I’ve heard."

MadRocketScientist-

I like the name, but not the sentiment.

If you lived in a small farming village, do you think it would be cool to enjoy the benefits of the community, but refuse to participate in the communal barn-raising type activities?

Or do you think that if you lived in a crowded city, you should have the option of not paying, say, your garbage collection fee and just letting it spill out into the street?

Why do you think it's any less sociopathic not to pay your union for the bargaining and representation you enjoy at your fellow workers' expense?

Now, I'm sympathetic to the possibility that your union is poorly run. But it IS a democratic organization. If it is genuinely not doing a good job, you're almost certainly not alone in feeling that way. You can run for office--probably easier than you might think--or work for decertification. Both with a secret ballot.

(In general, I think a lot of unions aren't necessarily well run in this country, though it's usually from laziness and bad habits, not malice. I'd be happy to hear anyone's suggestions for legislative fixes, though I think the biggest fix is probably just to have more unions, and make them a more familiar part of American public life.)

"EFCA does NOT eliminate secret-ballot elections, and people should really stop going around saying that. It gives the choice of whether to hold a secret-ballot election to the employees rather than the employer."

That's only 'true' if you are determined to conflate the employees with the union seeking to organize. Once the union has a majority of cards, IT, not the employees, decide whether there's an election.

Given the purpose of a union is to represent the employees, and once the majority of employees have signed cards, they have agreed to allow the union to represent them, how precisely is it unreasonable to refer to the union and the employees by interchangable nouns?

That's only 'true' if you are determined to conflate the employees with the union seeking to organize. Once the union has a majority of cards, IT, not the employees, decide whether there's an election.

What the heck? That doesn't even make any sense, let alone bearing any resemblance to the law.

Once a majority of cards have been signed and verified, the employer is forced to recognize the representative of the union and engage in collective bargaining. Once a contract has been made, the workers vote on it, or, if one third of the workers send cards requesting it to the NLRB, hold a Secret Ballot decertification election.

Nobody's out in that deal except a couple months work by the negotiators, and the workers get to vote on a real contract, not made up promises by both sides.

That's only 'true' if you are determined to conflate the employees with the union seeking to organize.

The union that a majority of the employees has signed cards to join? That union? Well, yes.

It's unreasonable, because we're talking about the very process which DETERMINES whether or not the union represents the employees. And signing the cards does not involve the same freedom of choice as voting in a secret ballot election.

Okay, hang on. So half the employees sign a card saying they want to have a union election, and letting the union set the date of the election is unreasonable, but letting the employer set the date is fine? Or... What, exactly? What's the objection here?

It's unreasonable, because we're talking about the very process which DETERMINES whether or not the union represents the employees. And signing the cards does not involve the same freedom of choice as voting in a secret ballot election.

No, it just moves it to the next phase - allowing a representative to try to negotiate a good contract for them. That's what "union represents the employees" means. (It doesn't mean something disastrous and awful, like feeding the workers' firstborns to Moloch.)

After there's a contract on the table (which, with the arbitration provisions, hopefully happens rapidly), there's voting galore - on the actual contract, or on decertification if some people have changed their minds. (It's quite easy to get a decertification vote.)

The only difference here is that workers aren't patronizingly asked twice about whether they're REALLY sure, and when they vote, they get to do so with all the information about what the union can or can't bring them.

Where's the beef?

There's nothing the least bit patronizing about asking somebody if they really want something by secret ballot. It's nothing but a way of protecting them from making a coerced decision. And you only take away the secret ballot if you WANT that decision to be coerced.

Essentially, people who advocate card check as a way of increasing unionization are conceding that unions are more proficient than management at threatening people with retaliation. Otherwise the union would do BETTER in the secret ballot than it does on the public cards.

You'd be a lot more believable Brett if you'd acknowledge the very real abuses EFCA is designed to prevent. If you don't think they exist, say so. It would make you seem even more one-dimensional than you already are, but if that's how you feel, just say so.

Otoh, if you do acknowledge employer-related abuses, just what, exactly, would you recommend instead of EFCA?

Essentially, people who advocate card check as a way of increasing unionization are conceding that unions are more proficient than management at threatening people with retaliation. Otherwise the union would do BETTER in the secret ballot than it does on the public cards.

No, at best it's a recognition that people are inherently conservative, and it's very easy for employers to create doubts and fear about change and the unknown.

And again, you're not actually addressing the proposal. It does not take away the secret ballot from employees. It takes it away from employers.

After the first contract has been negotiated, and all the information is in about what the union can or can't bring to the table, a minority of employees can request and get a secret ballot at any time.

(The ease of decertification is one of the reason intimidation is counterproductive for unions in the first place, by the way. Your evidence free accusations of intimidation are pretty ridiculous.)

There's nothing the least bit patronizing about asking somebody if they really want something by secret ballot. It's nothing but a way of protecting them from making a coerced decision. And you only take away the secret ballot if you WANT that decision to be coerced.

So ATT wants its workers to be coerced by unions? That's why it took away the secret ballot?

Majority sign up is already the way workers request that they be allowed to bargain collectively with the employer.

EFCA takes away the right of employers to demand an extra delay and "are-you-really-sure" election before having to sit down and propose a contract.

And the right of employees to request an election (decertification) is still right where it was.

Companies routinely lie about unions. When I worked briefly at a (non-union) grocery store, there was a section in the required training that talked about how "UNIONS WILL TAKE YOUR MONIES!" and "take away your right to bargain for yourself". Every single person had to go through this training.

And that, I think, is in some ways the best argument for unions helping workers. If the bosses are that frightened of unions...

My limited experience of working with unions was at a Philadelphia university where we had strong union representation.

While I am generally in favor of unions, I thought there were excesses in the system at that university.

For example, when my boss' kid drew on the floor with markers, my boss reasonably felt responsible for cleaning it up. Unfortunately he was reported by a janitorial worker who sae him, and our department was fined. He was required to call a janitor to do the work (for which we would also have to pay a fee from the budget). Similarly, we were not allowed to change lightbulbs in our offices, but had to call someone in to do it, again for a budgetary fee.

This just seems to be very inefficient and expensive. I assume that this is not typical of how unions operate, but it was very frustrating for those of us with dark offices because it cost too much from the budget to have the bulb changed (my recollection is the fee was about $25).

jesurgislac

Nice false dilemma.

What I want is the option to not have the Union represent me. No scabbing, no freeloading.

jack lecou

I negotiate my terms for myself with management. I'm an Engineer, not a burger flipper @ McDonalds. I know what the going salary for my profession is, and I can evaluate the cost effectiveness of benefits vs pay. I need a union to represent my interests like I need a hole in the head. But, because a bunch of guys some decades back decided to form a union, and Labor Lobbyists pushed this state to give power to the Union by forcing workers to financially support the union, I'm not given a choice. Except for the religious objector status, I'm required to pay the union, and if I take the religious objector status, I get harassed for it.

I don't begrudge others from joining a union, if they want to. And I don't think that unions should be outlawed or destroyed. What I do want is the option to not participate or pay for them. I'm OK with not being protected by them.

jrudkis: While that's irrational and inefficient in many ways, I'm not sure why the union is solely responsible for that arrangement. They didn't write the contract by themselves; they negotiated it with the university. (And I strongly suspect that the fee for changing light bulbs has nothing to do with the union, and everything to do with a central administration that wants to shift as many costs as possible to individual deparments and offices.)

I negotiate my terms for myself with management. I'm an Engineer, not a burger flipper @ McDonalds. I know what the going salary for my profession is, and I can evaluate the cost effectiveness of benefits vs pay. I need a union to represent my interests like I need a hole in the head. But, because a bunch of guys some decades back decided to form a union, and Labor Lobbyists pushed this state to give power to the Union by forcing workers to financially support the union, I'm not given a choice. Except for the religious objector status, I'm required to pay the union, and if I take the religious objector status, I get harassed for it.

I don't begrudge others from joining a union, if they want to. And I don't think that unions should be outlawed or destroyed. What I do want is the option to not participate or pay for them. I'm OK with not being protected by them.

I don't think you're really grasping the idea of collective action.

Now, if your union is really not providing you with any benefits (even potential ones, say if you had better leadership) you should sound out your coworkers about decertifying.

There is your right not to participate or pay - but it's taken collectively. (That, or work somewhere else.)

Otherwise, your position is lot like saying you ought to have a right not to pay taxes to your fellow citizens just because your Senator isn't doing a good job (or worse, just because you think the senator everyone else elected isn't doing a good job). It's sociopathic.

Hogan,

I am sure it was negotiated. But it is in line with delineating tasks by trades which I believe is a very typical format for union negotiations, and one that probably has situations like this appear fairly often, though hopefully not as completely silly.

And it is also probably true that the central administration wanted to shift these costs to the end user as a way to cut down on the use of services (so, for example, so long as one of your light bulbs was working, stop complaining.)

But I don't think it was in the University's interest to prevent me from cleaning up my own mess. The interest in that benefitted only the union.

jrudkis and Hogan-

It sounds to me like it wasn't the union contract that was really the problem, but the fee.

The contract probably just calls for the janitors to clean up messes, and the maintenance guys to change light bulbs, not the fee. And that wouldn't be a big deal. It's the the university politics and the incentives for draconian enforcement created with the fee.

I'm going to reprint this comment in full, because there seems to be loads of misinformation about what the EFCA does or doesn't do in terms of taking away secret ballot. This took place in a slightly different context, but is pretty close to the current discussion.

As far as I can tell it is indeed true that the EFCA takes away the secret ballot. If my legal interpretation is incorrect, or if there is administrative case law which overturns the assumptions, please let me know.

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. Union focuses on high-pressure, short-time period card check with at least the potential for 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.

The closest thing to what you are talking about is Section 159(e) which says:

(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. Dissenting workers have no say at this point. Depending on how the union is playing the game, they may not even be aware there is an ‘election’ going on until it is almost over.

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 any chance whatsoever 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.

That strikes me as a situation ripe for intimidation. Furthermore it is nothing at all like the blase “One is that it would “eliminate the secret ballot,” which is false.”

It does take away the secret ballot until after the ‘election’. You can months later THEN have a secret ballot election.

Also the effect of section 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.” seems to be even uglier.

If you count the non-secret ballot ‘election’ as a ‘valid election’ under this subsection, then the secret ballot election is not available until at least a full year later.

The way our political system has evolved, we typically want non-secret ballots for votes by representatives because it promotes transparency to the people they represent. We typically want secret ballots in electing those representatives, to make improperly pressuring the voting population more difficult, and to make bribing them trickier as you can't know how they voted.

All of the objections about company power can be dealt with in a much more direct fashion than by removing the protections of the secret ballot from employees and allowing union officials *who do not currently represent them* to approach them one at a time and try to personally convince them to sign *as a vote*.

We can make the election period shorter, so companies can't have long campaigns against the union.

We can substantially stiffen penalties for non-compliance.

We can beef up investigation of bad actions.

But if you can't distinguish between why we have secret ballots in Presidential and Congressional elections from why we ought not have them here, without essentially just saying "corporations are sooooooooooo evil that we have to get rid of basic electoral protections or we have no chance" then I don't think you are paying much attention to why secret ballots actually exist in our electoral systems.

And you're wrong anyway. Unions still get formed.

Jack,

It wasn't just the fee to get something done, it was the fine if you do it yourself. I don't see how that works as a draconian measure to cut down costs.

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.

Negotiations don't start the minute the cards get filed; I don't see why employees with objections would have to wait until "the middle."

Dissenting workers have no say at this point.

Not signing a card doesn't count as having a say? It isn't the functional equivalent of voting no?

If you count the non-secret ballot ‘election’ as a ‘valid election’ under this subsection, then the secret ballot election is not available until at least a full year later.

Yes, if you ignore the text of the NLRA, which consistently refers to the card process as a "petition" and not an "election" (and EFCA does nothing to change that), things could get muddled. But that's a more general problem with written laws, not something specific to this one.

But if you can't distinguish between why we have secret ballots in Presidential and Congressional elections from why we ought not have them here, without essentially just saying "corporations are sooooooooooo evil that we have to get rid of basic electoral protections or we have no chance" then I don't think you are paying much attention to why secret ballots actually exist in our electoral systems.

If you don't understand the uses of secret ballots in authoritarian regimes where informers are all around, official propaganda dominates public space, and anyone's citizenship can be terminated at will, then you aren't paying much attention to the specific conditions under which union elections are currently being held.

"Not signing a card doesn't count as having a say? It isn't the functional equivalent of voting no?"

They don't even have to be asked if the union organizer doesn't want to. And unlike an election there is no focal point to bother having a discussion if you would want to dissent until the whole thing is over.

Which is one of the reasons you have an election at a set time instead of (for example) letting people vote for the 2012 Presidency now.

"Yes, if you ignore the text of the NLRA, which consistently refers to the card process as a "petition" and not an "election"

Petition before it gets to 50%, election afterwards so far as I can tell from reading the statutes. So I think you're wrong. (But again, there is always the possibility of something else deep in the thicket).

"If you don't understand the uses of secret ballots in authoritarian regimes where informers are all around, official propaganda dominates public space, and anyone's citizenship can be terminated at will, then you aren't paying much attention to the specific conditions under which union elections are currently being held."

???

If you think termination of union organizers is an enormous problem, perhaps attacking the corporation through damages or criminal penalties is better than merely subjecting the innocent employees to further counter-pressure by removing them of one of the very few electoral protections they have on the subject.

jrudkis: It wasn't just the fee to get something done, it was the fine if you do it yourself. I don't see how that works as a draconian measure to cut down costs.

Well, actually: sometimes an amateur trying to clean up a mess themselves, depending what the mess was and depending how bad they are at cleaning it, can actually add to the costs of clean-up.

Also, the rule that only union cleaning staff clean up on university premises, with a fine for non-compliance, means that individual departments do not get to hire scab labor more cheaply. While obviously this doesn't apply to a well-meaning parent endeavoring to clean up a mess their small child made, still... there are rational reasons for wanting only professional, unionized cleaners on the job.

jrudkis-

I didn't say it cut down costs. I just meant that the fees, and the fines, sounded more like the result of university politics and bureaucracy rather than the union contracts per se. It's definitely possible to have union janitors without fining anyone's dept for tidying up after their kid.

Otherwise, your position is lot like saying you ought to have a right not to pay taxes to your fellow citizens just because your Senator isn't doing a good job (or worse, just because you think the senator everyone else elected isn't doing a good job). It's sociopathic.

So you are saying that the Union should have the power to tax employees, that the Union is in fact, a government entity with similar powers?

I accept that a government is necessary to administer the infrastructure & operation of any social entity, be it a town or nation. Taxes pay for that administration. But when I am critical of my government, and when I work to change how my government does business, I don't have to worry about the police harassing me, or the fire department declining to respond to me in a timely manner. You start arguing with your union, threatening the status quo, and you risk the die-hard supporters meeting you at your car, or coming to your house to have a chat with you.

So you are saying that the Union should have the power to tax employees, that the Union is in fact, a government entity with similar powers?

I'm saying that a union, like any community, is a collective entity that is largely an all or nothing proposition. You can't just opt of your obligations while continuing to enjoy the benefits of the community.

I'm also not necessarily defending the governance of your particular union. There are certainly rotten local unions out there. But you do have remedies, both legally and within the union structure.

But when I am critical of my government, and when I work to change how my government does business, I don't have to worry about the police harassing me, or the fire department declining to respond to me in a timely manner.

But when you are critical of your employer, and when you work to change how your employer does business, you do have to worry about your employer harassing you, and the Human Resources department declining to respond to you in a timely manner.

There's a great passage in Green Mars where one of the three geniuses who invented the human longevity treatment makes a statement about how people who say they believe in democracy and freedom go to work and surrender it all to a feudal despot...

You start arguing with your union, threatening the status quo, and you risk the die-hard supporters meeting you at your car, or coming to your house to have a chat with you.

So, MRScientist, are you saying this is your personal, direct experience of unions? That you yourself have personally argued with your union, and found that die-hard supporters began to harass you outside the workplace and at your home?

Or is this second-hand experience - you watched co-workers argue with the union and you witnessed them being harassed in the car park and know they got harassed at home? When? Did you report the people who did it to the police? Are there news reports? In what industry did this happen? How often?

Or is this third-hand experience? Fourth-hand? Friend of a friend? Something fellow anti-unionists have told you happens all the time?

What?

Sebastian-

I don't think I'm actually going to convince you of anything at this point, but the facts are very simple.

There are currently two possible ways workers might possibly participate in a Secret Ballot on the union:

1. At the instigation of the employer, as a reaction to the fact that the employer has just been presented with signed cards from 50% of its workers demanding to be represented by a union.

2. At the request of workers, any time after a first contract has been agreed to - the point at which workers actually have some solid information about what the union can or can't do for them.

EFCA takes away #1, it doesn't touch #2. And #1 clearly takes a right away from employers, not workers.

To claim it is taking something away from workers you'd have to believe that employers are everywhere just paternalistically looking out for the welfare of their employees, just double checking to make sure they're all really sure they want the union they just demanded, and that none of those nasty organizers named Michelle coerced them with lead pipes. (In one of the hundreds of well-documented cases of coercion you've got, right? Even though the interests of unions in the age of easy decertification are hardly aligned with alienating workers...)

And all this in direct contradiction to the clear evidence that employer demands for elections are almost exclusively a delaying tactic, used to buy more time for their union-busting consultants to work their own threats and intimidation.

No. #1 is not a sacred democratic right of workers. It's nothing but a mechanism for employers to try to frighten employees out of their hopes for a better work life, before they've even had a chance to see how a union might be able to help them.

Meanwhile, #2, which actually IS the right for workers to request a secret ballot referendum, is still in place.

Jack I quoted the law, not the rumor. I quoted the proposed bill. I showed my interpretation of how it works. If you believe I'm wrong, show me WITH THE LAW.

Your #2 appears to be incorrect.

"No. #1 is not a sacred democratic right of workers. It's nothing but a mechanism for employers to try to frighten employees out of their hopes for a better work life, before they've even had a chance to see how a union might be able to help them."

Is this your view of Presidential elections? Congressional? Would you be ok with a card check procedure in them? If not, why not?

Jack I quoted the law, not the rumor. I quoted the proposed bill. I showed my interpretation of how it works. If you believe I'm wrong, show me WITH THE LAW.

I believe I did. As far as I can tell, my #1 and #2 are both accurate descriptions of the law.

Your #2 appears to be incorrect.

Would you care to elaborate?

My #2 is more or less a paraphrase of your #4, except without the strange guesses about the political mood you imagine follows a first contract.

Your #4:

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.

My #2:

2. At the request of workers, any time after a first contract has been agreed to - the point at which workers actually have some solid information about what the union can or can't do for them.

As far as I can tell mine is more correct than yours, since I don't think they have to do anything "publicly" (at least no more publicly than pro-union organizers have to do things initially), nor immediately after anything.

Is this your view of Presidential elections? Congressional? Would you be ok with a card check procedure in them? If not, why not?

If you'd like to explain how Presidential or Congressional elections are at all analogous to workers deciding to bargain collectively, I guess my answer might come to me.

As it is, it doesn't seem like they have much to do with each other.

Also, once again, no one is taking away the secret ballot. It's still there - except at the discretion of workers only, not management. Unconscionable, I know.

Is this your view of Presidential elections? Congressional? Would you be ok with a card check procedure in them? If not, why not?

If you'd like to explain how Presidential or Congressional elections are at all analogous to workers deciding to bargain collectively, I guess my answer might come to me.

Just to get you started: please explain what the equivalent of majority sign up is in a Congressional election. Also, what is the entity that plays the role of the employer in choosing whether or not to hold an election after 51% of the electorate sign cards?

Sebastian wrote:

"As far as I can tell it is indeed true that the EFCA takes away the secret ballot."

This is incorrect. In general, EFCA purports to do three things: to streamline union certification (section 2); to facilitate initial collective bargaining agreements (section 3); and to strengthen enforcement (section 4).

Section 2 of EFCA amends Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)) and makes small conforming amendments to related passages elsewhere in the NLRA. Currently Section 9(c) consists of five sections governing when the NLRB shall conduct hearings as to "whether a question of representation affecting commerce" exists between an employer and its employees.

Inter alia it provides, in subsection 1B, that:

If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.

EFCA would add two new subsections to Section 9(c):

SEC. 2. STREAMLINING UNION CERTIFICATION.
(a) In General- Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)) is amended by adding at the end the following:

(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed ....alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented ....for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative ....the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

"Notwithstanding any other provision"

"It doesn’t require anything like part of the card to offer a secret ballot option which then 30% of the people can choose."

Section 7, 7a & 7b addresses the need for the Board to develop guidlines, procedures and model CBA language to be used to determine whether employees wish to be recognized by majority sign-up, or secret ballot.

(7) The Board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner described in paragraph (6). Such guidelines and procedures shall include--

`(A) model collective bargaining authorization language that may be used for purposes of making the designations described in paragraph (6); and

`(B) procedures to be used by the Board to establish the validity of signed authorizations designating bargaining representatives.

"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.....

The section you refer to here covers DE-CERTIFICATION elections of Unions currently in place.

This renders your points numbered 1, 2, 3 & 4 non-issues, as it would your further conclusions: "...a situation ripe for intimidation....nothing at all like the blase “One is that it would “eliminate the secret ballot,” which is false.”


"If you count the non-secret ballot ‘election’ as a ‘valid election’ under this subsection, then the secret ballot election is not available until at least a full year later."

The majority sign-up is not considered an election, so therefore the 12 month "waiting period" would not aply to it. A series of decisions (61, all ANTI-WORKER) handed down by the outgoing "Bush" NLRB in Sept 2007 (The "September Massacre") included two decisions recognized as pre-emptive strikes designed to weaken the EFCA, should it eventually be passed into law, "Dana Corp./Metaldyne" and "Wurtland Nursing":

On Sept. 29 - a date that will live in the Double Standard Hall of Fame - the NLRB issued two rulings, the first (Dana Corp./Metaldyne) dealing with "card check." The board ruled that once a union was certified through card check, the employer must post a notice telling employees that if 30 percent of them sign a petition saying they don't want a union, the 50 percent-plus-one of them that do are overruled and a board election must be held. The Bush appointees argued that card-check isn't a good measure of worker sentiment, since those employees who sign cards and petitions may be susceptible to "group pressure."

On the same day, however, in a case (Wurtland Nursing) involving an employer's withdrawal of recognition from the union in its workplace, the board ruled that if a majority of workers signed cards or petitions asking for a vote to remove the union, the employer could decertify the union then and there without even holding that vote. Signed petitions from workers, in other words, are suspect when the workers want a union and proof positive when they don't.

Where was the C of C's OUTRAGE over employees rights being VIOLATED in these decisions? Where were the Rick Berman front groups HOWLING over workers being "STRIPPED" of their right to a "SACRED" secret ballot?

The sam groups, who for DECADES have fought FIERCELY against increasing minimum wage, universal healthcare, SCHIP, safer workplace rules, etc. are SUDDENLY "CHAMPIONS" OF WORKERS RIGHTS?

PLEASE.

The Dana/Metaldyne decision would make any newly formed Union under the majority sign-up method vulnerable to a MINORITY of workers, and the Wurtland Nursing decision would allow for a de-certification WITHOUT a secret ballot. The irony here is under these circumstances, should employees choose to Unionize with a secret ballot election, the 12 month "safe" period for de-certification would apply. It is for that reason, IMHO, even should the EFCA pass as written, some will choose the secret ballot over the card-check.

"But if you can't distinguish between why we have secret ballots in Presidential and

Congressional elections from why we ought not have them here...then I don't think you are paying much attention to why secret ballots actually exist in our electoral systems."

If you can't distinguish betwwen Presidential & Congressional elections and Union elections, then you've never been an employee trying to form a Union. My company voted by a 72% majority to unionize in June 07. Through delays and legal maneuvers on the part of the company, we did not receive certification from the NLRB until the company ran out of legal challenges to the NLRB process in April 08. The company then flat out refused to comply with the NLRB's "order" to begin bargaining, and turned to the Appelate Court. More delays. More stalling. But they did have to post a sign that said, basically, "We were naughty, but we promise we won't do it again." They will, and they have.

This is the "cornerstone of Democracy" secret ballot process you wish to defend?

I'll take the majority sign-up, thank you very much.

"If you'd like to explain how Presidential or Congressional elections are at all analogous to workers deciding to bargain collectively, I guess my answer might come to me."

Well, in both cases we're talking about the selection of people, (Unions/Congressmen) who have no claim to represent anybody until after the selection process is finished. And hence, any claim that it's ok to take a short cut to finish the selection because "what could go wrong, they're the people's representatives anyway" is nuts.

Well, in both cases we're talking about the selection of people, (Unions/Congressmen) who have no claim to represent anybody until after the selection process is finished. And hence, any claim that it's ok to take a short cut to finish the selection because "what could go wrong, they're the people's representatives anyway" is nuts.

Try again.

This isn't about selecting a representative as much as deciding to be represented at all.

It's more like...maybe petitioning for statehood or something, against the desires of a hostile Congress. A hostile Congress that gets to ignore the express wishes of the people and ask them to try again when it pleases it to do so.

And I know you've somehow convinced yourself that's a crucial democratic protection somehow, but it really isn't. There's no short-circuiting of the incorporation process by abolishing it - just the contumacy of the opposition.

I'll point out yet again that if a majority of workers change their mind about the cards, there is ample opportunity to do so once they actually see a contract and have all the facts.

Employer instigated elections at the beginning of the process are all about trying to kill the union stillborn, before anyone might see what it can do for them.

jack: Employer instigated elections at the beginning of the process are all about trying to kill the union stillborn, before anyone might see what it can do for them.

I'm absolutely certain that Brett and Sebastian understand that perfectly, jack. That's why they object to employees getting to decide if and when they want a secret ballot or if they'd rather just begin unionization without employer-enforced delays.

EFCA "card check" recognition could actually DISCOURAGE "coercion" by Union Organizers.

For elections held under Section 9(c), if a majority of workers vote for representation, a decertification election under Section 9(e) MAY NOT BE HELD SOONER THAN 12 MONTHS AFTER THE ORIGINAL ELECTION. But for NEW Section 9(c) petition-based certifications under EFCA, no such time restriction would apply, BECAUSE NO "VALID ELECTION" WOULD HAVE BEEN HELD. A 30% MINORITY of workers could FORCE a secret ballot decertification election AS SOON AS they gathered their signatures.

This feature of the NLRA after EFCA, if it were passed, makes remote the scenario speculatively proposed by anti-EFCA campaigners: that card-check certification will be achieved in SOME instances (the campaign propaganda implies USUALLY) through false majorities created by a minority of pro-union workers who might coerce workers who would otherwise vote "no" on a secret ballot to sign a certification petition against their true will.

In fact EFCA's relation to Section 9(e)(de-certification election) would provide a STRONG INCENTIVE for workers organizing a union through card-check certification to make sure they have NOT JUST MAJORITY SUPPORT, but SOLID support by a SUBSTANTIAL MAJORITY, because certification with signatures of a small and ambivalent or UNCOMMITED majority COULD BE CHALLENGED QUICKLY BY A DETERMINED MINORITY, creating a situation in which either legitimate persuasion could succeed, or common and widespread employer anti-union intimidation tactics during organizing drives could be brought to bear. Any cases of a fraudulent pro-union false majority obtained by UNSCRUPULOUS means would be RAPIDLY REVERSED. Also, the last thing an organizer wants is for allegations of coecion to delay certification while the NLRB investigates such ccharges, a lengthy process to put it mildly, which defeats the purpose of STREAMLINING the process.

EFCA is NOT a prescription for pro-union intimidation of anti-union workers. It is a prescription AGAINST current business attitudes that make almost STANDARD PRACTICE out of aggressive and OFTEN ILLEGAL anti-union tactics, including firings, other retaliation, coercive mandatory captive audience meetings and other forms of intimidation, to deny workers their right to organize themselves in a union. That right is a human right, under the Universal Declaration of Human Rights and other international law, and a U.S. legal right, under Section 7 of the NLRA. Yet employers violate it ROUTINELY, treating the penalties incurred by unfair labor practices as a COST OF DOING BUSINESS, and current law and regulation PERMIT THAT TO OCCUR.

While the organized anti-EFCA campaigners claim to oppose intimidation of workers, THEY REPRESENT EMPLOYER INTERESTS that practice such intimidation as a matter of course, as well as professional anti-unionists who MAKE THEIR LIVLIHOOD out of legal advice and consulting with employers on HOW TO KEEP THEIR WORKFORCE "UNION-FREE" BY USING SUCH INTIMIDATION. If the organized opponents truly cared about preventing intimidation of workers, THEY WOULD PROPOSE ALTERNATIVE REFORMS to address the manifest and widely documented problem of employer law-flouting and intimidation. But they actually don't care at all about preventing coercive intimidation. THEY CARE ABOUT PRESERVING THE CURRENT LEGAL REGIME THAT LETS THEM or THEIR CLIENTS GET AWAY WITH IT.

The call and extensive support for EFCA reflect one form of fightback against the widespread FAILURE OF PROTECTIONS in the current secret ballot representation elections system and AGAINST undemocratic anti-union EMPLOYER PRACTICES. Honest disagreers with EFCA ought at least to recognize that the secret ballot in itself HAS NOT BEEN ENOUGH to prevent such abuses and is corrupted by its context under the CURRENT SYSTEM.

Under EFCA many unions would still choose to pursue certification by election, because of the added security it provides for newly organized workers compared to card check, especially in light of Section 3 of EFCA, which gives union workers a REMEDY against the FREQUENT current employer illegal tactic of REFUSING to bargain a first contract in good faith, and then promoting a decertification election after a year. A key feature of card-check is that it would provide a disincentive to employer harassment and intimidation if organizing workers decided to pursue an election, and a fall-back if they faced such employer actions.


Jesurgislac

Yes, I have family that is/was union. Most are not happy with the union in general, mainly because they feel the union plays politics with their jobs without their approval. One aunt of mine actually suffered death threats and had to go into hiding because she had the temerity to become a manager right before a big union dust-up. When her former co-workers came to her for support, she rightly told them she couldn't because she was no longer in the union, and was now management. Seems that was unacceptable to them. She did call the police, who did take her seriously, but it's easy to make threats without leaving a trail.

The issue eventually died away, but my aunt had to leave that company because she could no longer trust the people she was trying to manage.

jack lecou

Anti-social? I'll take that label. Yep, I'm anti-social, I don't believe in following the herd just because the herd is there.

As to your question of supporting a group that could have a positive effect on me, I don't buy it. First off, sure the union has fought for and established benefits and procedures to protect employees, but they've also created arbitrary structures which are "fair", like seniority. Without the Union, I work under greater risk of arbitrary dismissal, but I also have the ability to work hard, impress my bosses, and get promoted quickly. But because of seniority, I can't, I have to wait until people who have been here longer, who may not be as driven or as capable as I am, get their time in those upper positions. In my value system, the union has negatively impacted my career goals.

Now, as to supporting a group who creates a positive effect, think of a large city near a small town. The large city collects taxes and build a mass transit system. That mass transit system runs near a number of small towns. People who live in those small towns can drive to the train station, and take the train into the city, gaining a benefit. The people from the small towns pay their fares for the trains, as does everyone else. Is it right for the city, once it realizes that the non-residents are using the train, to demand taxes from the small town to support the train?

Another example, a town lives on a river, and that river floods a lot. The town builds a dam to control the floods, and it is very successful. The town enjoys a benefit, and so does every other town downstream. Should those other towns be forced to pay for the upkeep of the dam they did not ask for?

Now, I'd support the big city, or the town with the dam, going around and asking for the voluntary support of the communities that benefit from it's effort, and I would also say that there is a degree of obligation for those towns to offer their support. But for those entities to take that support through force of law? Nope, not morally acceptable.

If I work for a company, and while I work there, a union forms, and I vote for the union, I'm obligated to support what I've helped to create for as long as I work there. But the guy who starts working a year later, he isn't. The union should be required to sell itself to the new guy, to convince the new guy that the union is a solid investment for his career. As it stands, the union has no requirement to remain attractive to the workers, it just needs to maintain enough power to be able to discourage a call for de-certification.

And I don't know about most of you people, but most of the people I know are afraid of the unions. Not because the union leadership will attack them, but because every union has a good size group of true believers who don't tolerate open dissent very well, and the leadership, if it doesn't actively encourage these people, will be happy to turn a blind eye to them.

JD you aren't reading very carefully if you think

"the Board shall not direct an election"

doesn't take away the secret ballot election.

"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.....

The section you refer to here covers DE-CERTIFICATION elections of Unions currently in place.

This renders your points numbered 1, 2, 3 & 4 non-issues, as it would your further conclusions: "...a situation ripe for intimidation....nothing at all like the blase “One is that it would “eliminate the secret ballot,” which is false.”


"If you count the non-secret ballot ‘election’ as a ‘valid election’ under this subsection, then the secret ballot election is not available until at least a full year later."

The majority sign-up is not considered an election, so therefore the 12 month "waiting period" would not aply to it.

Yes I'm well aware. I'm talking about how the workers get a secret ballot election if they want it. They get automatically certified and cannot contest the certification for a year.

"If you can't distinguish betwwen Presidential & Congressional elections and Union elections, then you've never been an employee trying to form a Union. My company voted by a 72% majority to unionize in June 07. Through delays and legal maneuvers on the part of the company, we did not receive certification from the NLRB until the company ran out of legal challenges to the NLRB process in April 08."

So the solution to delaying and legal maneuvering is to remove employee secret ballot?

Really?

Seriously?

You can't think of anything to do to the company that you claim is breaking the law? Your remedy to COMPANY malfeasance is to take away WORKER protections about who they vote for.

That is a power play, not a worker protection.

I note that you haven't even attempted to outline the differences between Congressional, Presidential and union elections that make secret ballot protections appropriate in the first two cases and wrong in the the third.

The similarities however are: you are voting for representatives to delegate your authority in another venue. This gives them substantial power over your fate in the future. As we know, people often do nasty things while seeking power. One important protection is that we don't typically allow those people in power to be certain of how the people they represented voted when it comes to the selection of representatives.

Removing that to allegedly 'counter' completely different pressures is NOT removing pressure on the worker. It is merely adding additional pressure. It isn't reducing the potential for abuse, it is just expanding the avenues of potential abuse to even further parties.

Merely asserting that the cases are different is not a logical argument. You need to establish that the election of union representatives is qualitatively different from the election of other representatives AND you have to establish that the difference warrants removal of normal secret ballot protections. You haven't even tried to do either. In fact you haven't even tried to demonstrate that you understand what secret ballot protections are for in Congressional elections.

Query: (but please answer only after the above) Would card check be a good method to elect officers IN the union?

Jack: "And I know you've somehow convinced yourself that's a crucial democratic protection somehow, but it really isn't."

Really? I'm certain that if anyone was stupid enough to propose removing secret ballot from any other representation election (Congress, President, city council, District Attorney) you would be very suspicious of it. I fairly certain you would resist it.

Can you imagine if a District Attorney candidate could know exactly who did and did not vote for him? You'd be ok with that?

In an enormous majority of cases, who represents you in a union is vastly more important to you than who represents you in Congress, or as the District Attorney, or as President. Yet it is in this much MORE important case, in terms of individual impact on your life, that you want to remove the protection?

Is it right for the city, once it realizes that the non-residents are using the train, to demand taxes from the small town to support the train?

That's easy: Yes, if it is possible. Rail transit is often subsidized, so even though riders are paying their share, the governments of the smaller towns are reaping benefits, but not paying their fair share. Just like unions, it's a collective action problem: if you have free riders, resources will be under allocated. (In this case, not enough money will be available to properly increase capacity, etc.)

In specific cases, it may or may not be a huge problem, and the peculiarities of government divisions might make it impossible to fix, of course. But in principle, it should be. (It's similar to the urban-to-suburban flight problem and collapse of the urban property tax base.)

Another example, a town lives on a river, and that river floods a lot. The town builds a dam to control the floods, and it is very successful. The town enjoys a benefit, and so does every other town downstream. Should those other towns be forced to pay for the upkeep of the dam they did not ask for?

Again, collective action problem: The fact that one town bears the costs, but others enjoy benefits suggests that in general too few dams will be built.

This sounds like a failure of whatever government hierarchy is above the towns. Ideally, they would all be going in together on this kind of project through some kind of regional government.

And if there were a regional government, would you support a town that was part of that government refusing to pay it's share of the costs for a dam the regional government had legitimately decided to build?

If I work for a company, and while I work there, a union forms, and I vote for the union, I'm obligated to support what I've helped to create for as long as I work there. But the guy who starts working a year later, he isn't.

By accepting a job in a union shop, you agreed to become part of that community, with all the benefits and obligations that come with it.

If you move to a new town, do they have to sell themselves to you before you voluntarily agree to pay their taxes or not? That'd be ridiculous. You live there now. You're obligated to participate. Vote for lower taxes in the next election, if you like, but it's not cool just to be a deadbeat.

By accepting a job in a union shop, you agreed to become part of that community, with all the benefits and obligations that come with it.

If you move to a new town, do they have to sell themselves to you before you voluntarily agree to pay their taxes or not? That'd be ridiculous. You live there now. You're obligated to participate. Vote for lower taxes in the next election, if you like, but it's not cool just to be a deadbeat.

You might not want to run with that analogy too far, as it makes it sound more like the secret ballot election system that we normally enjoy...

Really? I'm certain that if anyone was stupid enough to propose removing secret ballot from any other representation election (Congress, President, city council, District Attorney) you would be very suspicious of it. I fairly certain you would resist it.

For really the last time, because your inability to grasp this is pretty boring, no one is removing the secret ballot. It's still there - when WORKERS want it.

What is being removed is the ability of an employer to demand one when they choose to. It's utterly ludicrous to claim that that privilege, enthusiastically exercised by union busting management everywhere, often in the face of extreme card check super majorities, is somehow a protection for WORKERS.

Your argument depends entirely on confusing a procedural veto privilege enjoyed by the EMPLOYER with a genuine worker protection. It doesn't fly.

Madrocketscientist,

It is good to be reminded now and again that our airplanes are being designed and built by people selected through seniority.

Thanks.

Really? I'm certain that if anyone was stupid enough to propose removing secret ballot from any other representation election (Congress, President, city council, District Attorney) you would be very suspicious of it. I fairly certain you would resist it.

Another thing I don't find the least bit convincing? This persistent, non-responsive use of false analogies.

I'll ask again: what's the equivalent of majority - often supermajority - card check in these circumstances? What's the equivalent of hostile management, with the ability to demand an extra election if they please?

You might not want to run with that analogy too far, as it makes it sound more like the secret ballot election system that we normally enjoy...

Union governance is based on a secret ballot as well. Selection of leaders, acceptance of contracts, and referendums on the union (at the option of the WORKERS).

What we're debating here is an extra election forced upon workers by MANAGEMENT.

You're basic refusal to acknowledge this is bordering on dishonest at this point.

Madrocketscientist: One aunt of mine actually suffered death threats and had to go into hiding because she had the temerity to become a manager right before a big union dust-up. When her former co-workers came to her for support, she rightly told them she couldn't because she was no longer in the union, and was now management. Seems that was unacceptable to them. She did call the police, who did take her seriously, but it's easy to make threats without leaving a trail.

That's appalling. Under no circumstances should death threats be used to intimidate. Indeed, no kind of harassment is acceptable.

Frank Askin:

I speak with some personal experience in such matters. I spent the 95th Congress (1977-78) as special counsel first to the House labor-management committee and then the Senate labor committee.

What was even then apparent to any open-minded observer was that national labor law was nothing but a hunting license for employers to prevent union organizing. All they had to do was harass union organizers, fire union supporters and drag out elections forever, all with the help of highly paid and skillful anti-labor consultants.

Of course, those tactics were all illegal, and eventually the employers would pay fines, sometimes even large fines, but that was small change compared with having to sign a union contract. They might even have to rehire some of their fired employees years down the road, but by then the wind had been removed from the sails of the organizing drive.

In a previous incarnation, I even had some experience of my own with this sort of union busting. As a journalist, I had once led a campaign to organize the editorial department of my newspaper into the American Newspaper Guild. Before the vote, I was fired for moonlighting. Of course, all of the reporters moonlighted, but I was the only one fired, and I was held up by management as an example of what would happen to other staffers who stuck their necks out. The union drive was quickly deflated.

My job in the 95th Congress was to help draft and pass a Labor Law Reform bill. Its provisions would have prevented employers from delaying elections, put real teeth into the NLRA, and created a level playing field for union campaigners.

The bill was passed overwhelmingly in the House and went to the Senate in June, 1978. I spent the next six weeks on the floor of the Senate trying to help the Democratic leadership and the American trade union movement bring the bill to a vote in the face of a Republican/Dixiecrat filibuster. In the end, we could only muster 59 of the 100 Senators to support the bill. The 41-member minority prevailed, and the bill died.

Let's try this another way-

Suppose the United States is going to undertake high stakes negotiations with, say, China.

They need to decide whether to represent themselves as a unified front, rather than individual states. They make the decision among themselves, and appoint a single ambassador to negotiate on their collective behalf.

Do you think it'd be a crucial democratic protection to dissenting states to give China the power to demand that they reconsider that decision in a Secret Ballot?

"Your argument depends entirely on confusing a procedural veto privilege enjoyed by the EMPLOYER with a genuine worker protection. It doesn't fly."

And if you merely removed THAT. I wouldn't care. But you aren't.

If you are really worried about JUST that, make the procedure that a successful card check triggers a system of secret ballot elections in a very short time frame. Say 4 weeks. Or maybe even 2 or 3.

Solved.

But that isn't what you REALLY want, is it?

"Union governance is based on a secret ballot as well. Selection of leaders, acceptance of contracts, and referendums on the union (at the option of the WORKERS)."

But how exactly to you claim to know what the 'option of workers' is?

Do you mandate disclosure on the card check form that they can ask for a secret ballot? Of course you don't.

Because that isn't what you really want.

And if you merely removed THAT. I wouldn't care. But you aren't.

Pray tell, what else is being removed?

But that isn't what you REALLY want, is it?

Stop reading my mind. I think that'd be fine. Pointless, but fine. At least along with the other provisions of EFCA, and maybe some additional ones to prevent employer interference in the run up to the election.

But how exactly to you claim to know what the 'option of workers' is?

30%. Sending their requests to the NLRB or whatever. Duh.

"I note that you haven't even attempted to outline the differences between Congressional, Presidential and union elections that make secret ballot protections appropriate in the first two cases and wrong in the the third."

Dr. Gordon Lafer did such a comparison for ARAW in 2005. I think it hit the mark:

FREE AND FAIR? HOW LABOR LAW FAILS U.S. DEMOCRATIC STANDARDS

From An American Rights at Work Report by Gordon Lafer, Ph.D. June 2005
http://www.americanrightsatwork.org/dmdocuments/ARAWReports/FreeandFair%20FINAL.pdf

Principles of U.S. Democracy: Defining Fair Elections

As the world’s first democracy, the United States has long served as the standard-bearer for defining what constitutes “free and fair” elections. But what exactly are these standards? While there are myriad practices that make up a democratic election — and many practices that vary from one state to another— a handful of core principles define the U.S. tradition of democratic elections. In addition to the secret ballot, these include:

• Genuine competition between parties and equal access to voters
• Free speech for both candidates and voters
• Equal access to the media
• Leveling the playing field by controlling campaign finance
• Protecting voters from economic coercion
• Timely implementation of the voters’ will


EQUAL ACCESS TO THE MEDIA:

Democratic Elections Standards: Distribution of Competing Viewpoints to Create an Informed Electorate.

How Do Union Representation Elections Measure Up?: Employees are restricted from openly disseminating information: In elections for union representation, employers have monopoly control of media within the workplace. They can distribute anti-union information anywhere and at anytime, while pro-union workers are restricted to posting literature in the break area during break time. Unions are restricted to distributing material off-site.

FREEDOM OF SPEECH:

Democratic Elections Standards: Broad Debate of Public Issues

How Do Union Representation Elections Measure Up?: Employees are restricted from openly expressing their opinions: Employers are allowed to enforce a total ban on employees discussing the proposed union outside of the break room. Yet employers enjoy unfettered communication, subjecting employees to mandatory staff meetings and one-on-one meetings with supervisors, often with the intent of intimidating those suspected of supporting union formation. Labor law provides no equal opportunities for pro-union workers to respond or present alternative viewpoints.

EQUAL ACCESS TO VOTERS:

Democratic Elections Standards: Promoting Balanced Competition & a Level Playing Field

How Do Union Representation Elections Measure Up?: Employers have greater access to voters: Although pro-union workers and union organizers are permitted to contact workers outside of the workplace, such communication is exceedingly difficult to arrange. Employers have unilateral access to employees within the workplace, and can easily contact them at home. While employers may freely distribute a steady stream of anti-union correspondence through the mail, pro-union workers lack access to employee address information until they can document that 30% of the workforce wants a union. Even then, employers can legally provide lists with incomplete information, such as missing zip codes and telephone and apartment numbers.


VOTER COERCION:

Democratic Elections Standards: Restricting Undue Influence

How Do Union Representation Elections Measure Up?: Employees are not protected against economic coercion: Employers and their supervisory personnel exercise considerable economic leverage over workers, including the discretion to assign and change work duties, grant raises and promotions, and control work schedules. Existing statutes prohibit explicit threats to and bribery of employees. But this leaves ample room for employers to stop short of that threshold and still conduct activities designed to thwart union recognition. Workers are subjected to thinly-veiled threats in the form of ‘predictions’ that choosing to form a union may lead the company to close the worksite, lose business and make cutbacks. Employers are also free to make statements like “a union is a declaration of disloyalty to me personally and an affront to everything the company stands for.”

APPLES & BOWLING BALLS.

"Pray tell, what else is being removed?"

The ability to find out what workers really think without having the union know what their vote is.

"Stop reading my mind. I think that'd be fine. Pointless, but fine. At least along with the other provisions of EFCA, and maybe some additional ones to prevent employer interference in the run up to the election."

I'm not reading your mind, and you aren't bothering to share it much...

If you would be fine with that, why is it so gosh darn necessary to not have a secret ballot election?

I don't mind doing whatever is necessary to make sure that the workers can honestly and secretly vote their preferences.

Show me in the text of the EFCA or the underlying bill when precisely you believe that workers get their first opportunity to get a secret ballot election if the union. My contention is that they are barred for a full year, which is ridiculous.

If you are relying on the Bush-era NLRB ruling, are you committed to fighting to uphold it, or are you merely using it as a distraction for the purposes of the current argument, to be discarded later?

Interesting, JD. So you believe that fairness in elections requires

Genuine competition between parties and equal access to voters
Free speech for both candidates and voters
Equal access to the media
Leveling the playing field by controlling campaign finance
Protecting voters from economic coercion
Timely implementation of the voters’ will
Secret Ballot

And you believe that outlining ways in which those values are not being fairly dealt with mandates removing more of them rather than trying to bring the ones that are currently out of line more into the conception of just elections. Is that a proper summary of the point of your 1:11 post?

The ability to find out what workers really think without having the union know what their vote is.

Nope. Try again. Secret ballot referendums are still there.

If you would be fine with that, why is it so gosh darn necessary to not have a secret ballot election?

Clearly, it isn't. Secret ballot elections are still there under EFCA as it stands. What's vital is streamlining the process and removing employer veto power over it:

The card check process has to be there regardless - you've got to have some kind of petition to kick the process off.

What's pernicious is allowing the employer to have the power to ignore the express wishes of the workers and arbitrarily insert an extra roadblock in the process.

Less pernicious, but more or less pointless, is inserting a mandatory election with a short timeline kicked off by a petition. It has the potential to be abused by the employer, and it's still an extra paternalistic check on the already legitimately expressed desires of the workers. (If the workers WANT a secret ballot, they can have one - triggered by a minority of workers expressing a desire for one.)

Show me in the text of the EFCA or the underlying bill when precisely you believe that workers get their first opportunity to get a secret ballot election if the union. My contention is that they are barred for a full year, which is ridiculous.

At the latest, it is after a contract has been agreed on (which I contend is a very reasonable time to have such a referendum, as workers will actually know what they're voting on). With the arbitration provisions in EFCA, hopefully the contract negotiation is reasonably swift.

Possibly earlier than that, maybe while negotiations are underway, or even before that, if JD's interpretation is correct. I think it will depend on NLRB rulings and guidelines.

It's certainly not at least a year, though it's possible it could be that much if contract negotiations drag out, and if it does have to happen after they're concluded.

JD you aren't reading very carefully if you think

"the Board shall not direct an election"

doesn't take away the secret ballot election."


You're not reading very carefully if you think

"6) Notwithstanding any other provision of this section"

doesn't refer to provisions that would ALLOW FOR a SECRET BALLOT ELECTION.


"Yes I'm well aware. I'm talking about how the workers get a secret ballot election if they want it"


No, I'm afraid you are LESS than well aware, and again, didn't read very carefully:

Section 7, 7a & 7b addresses the need for the Board to develop guidlines, procedures and model CBA language TO BE USED TO DETERMINE whether employees wish to be recognized by majority sign-up, or secret ballot.

(7) The Board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner described in paragraph (6). Such guidelines and procedures shall include--

`(A) model collective bargaining authorization language that may be used for purposes of making the designations described in paragraph (6); and

`(B) procedures to be used by the Board to establish the validity of signed authorizations designating bargaining representatives.


They get automatically certified and cannot contest the certification for a year.

This is the second time you have misinterpreted this provision. I don't know how you came to that conclusion, perhaps it just fits your argument better, but the LAW is another matter.

"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."

AGAIN, I'll explain: When a Union is certified by majority sign-up, IT HAS NOT BEEN CERTIFIED BY ANY TYPE OF ELECTION, "VALID" OR OTHERWISE,and therefore is NOT subject to the "12 month" rule, and is IMMEDIATELY vulnerable to a de-certification secret ballot election if a MINORITY of 30% can get cards or a petition signed stating that is their wish.

"So the solution to delaying and legal maneuvering is to remove employee secret ballot?
Really?
Seriously?
You can't think of anything to do to the company that you claim is breaking the law? Your remedy to COMPANY malfeasance is to take away WORKER protections about who they vote for.
That is a power play, not a worker protection."

You're absolutely right. It IS a power play. A TRAP.From an article in the Atlantic, March 11th:

    But as T.A. Frank has argued in The Washington Monthly, this is not necessarily the most essential part of the bill from the perspective of organized labor or, for that matter, those who hope to limit labor's influence.

    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.

    So why the focus on card-check and eliminating employer-mandated secret-ballot elections? Frank argues that this represents a rhetorical strategy on the part of EFCA's opponents.

    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 so, as Frank later suggested, a strategic retreat on the most polarizing aspect of EFCA might be an acceptable outcome.

    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.

Politically, one could go further: by accepting that secret ballots are good and valuable and in tune with American ideals, etc., the labor movement would put its opponents on the defensive. It's hard to see exactly how business groups would counter this move.


[I've edited your comment solely to remove the out of control bolding, no content was changed]

"My contention is that they are barred for a full year, which is ridiculous."

You're right, Your contention is ridiculous. AND incorrect.

"Less pernicious, but more or less pointless, is inserting a mandatory election with a short timeline kicked off by a petition. It has the potential to be abused by the employer, and it's still an extra paternalistic check on the already legitimately expressed desires of the workers."

The bold section is where your assumptions have gone wrong. You don't know what the legitimately expressed desires of the workers are because you want to count signing the card in the presence of the union organizer so that he can know whether or not you voted for him as 'legitimately expressed desire' when you won't agree that it is a legitimately expressed desire in virtually any other case.

If that is a legitimately expressed desire, why would it not be so if you were voting for District Attorney?

If that is a legitimately expressed desire, why would it not be so if you were voting for Congressman?

If that is a legitimately expressed desire, why would it not be so if you were voting for President?

You have repeatedly refused to explain your rationale for supporting secret ballot in those cases, so I can only speculate as to your reasoning.

But I certainly note that we don't hold card check elections before every Presidential election to see if the people 'want' to have a secret ballot.

On the other issues, at the very minimum the employees who don't agree with the union (who very well may be in the majority if there were a regular secret ballot election) don't get word one in until after they are bound to a labor contract by the union that they never voted for. This is clearly true because of the language: "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".

If the Bush NLRB ruling is correct, they might have the ability to do so AFTER that point (and that doesn't seem likely to do anything other than create an enormous amount of friction between the union and the not-excited-about-the-union employees whom they should have had to appeal to first). I note that this NLRB ruling has already been described rather negatively above and you have declined to support the interpretation.

Ok, JD and Jack, since you both contend it is already there, and since you both contend that *if the employee wants it* they can have a secret ballot election, surely you wouldn't oppose the following.

A) specifically calling out in the EFCA that the card check does NOT count as an election under 29 (7) II Section 159 (e)(2)

B) A prominently placed check box on the card check reading something like "if you would like a secret ballot election, please check here"

and

C) Card check not to be collected by the union representative, but rather mailed to the NLRB or some 3rd party depository so that the immediate pressure is not available?

Is that reasonable?

Sebastian: You don't know what the legitimately expressed desires of the workers are because you want to count signing the card in the presence of the union organizer so that he can know whether or not you voted for him as 'legitimately expressed desire' when you won't agree that it is a legitimately expressed desire in virtually any other case.

Huh?

Sebastian, I think you have a major confusion going on here. When signing a card, you are not voting for an individual union organizer: you are voting for there to be a union.

I can't decide whether you're speaking out of genuine ignorance as to how unions work, or whether it's just a typo... care to clarify? Or, you know, admit you got it wrong, back up, and start over?

"Sebastian, I think you have a major confusion going on here. When signing a card, you are not voting for an individual union organizer: you are voting for there to be a union."

Umm, yes. I don't understand why you think I'm confused. The union organizer is a representative of the union being voted upon. Just as corporations can't put actual pressure on people except through representatives, unions can't put actual pressure on people except through representatives...

"Politically, one could go further: by accepting that secret ballots are good and valuable and in tune with American ideals, etc., the labor movement would put its opponents on the defensive. It's hard to see exactly how business groups would counter this move."

Absolutely. I for one don't have a problem with the EFCA except for the secret ballot provisions which I have a huge problem with.

And you believe that outlining ways in which those values are not being fairly dealt with mandates removing more of them rather than trying to bring the ones that are currently out of line more into the conception of just elections. Is that a proper summary of the point of your 1:11 post?

Perhaps that is EXACTLY the goal of organized labor, they can appear to "compromise" on the secret ballot canard & still get what they want---arbitration & mediation which streamline the bargaining process, AND stiff penalties for employers who break the law. The repukes can say "we saved the secret ballot" and can CLAIM victory.

I can't decide whether you're speaking out of genuine ignorance as to how unions work, or whether it's just a typo... care to clarify? Or, you know, admit you got it wrong, back up, and start over?

It's pretty clear from the non-stop false analogies that Sebastian doesn't understand the difference between an election and a process of collectivization. Whether out of ignorance or for rhetorical effect, I don't know.

Is that reasonable?

Seems like it to me. In fact, I think (A) is unnecessary because it is already the plain meaning of the law, (B) may be implemented by NLRB guidelines, or unions themselves, and (C) is already the case.

Absolutely. I for one don't have a problem with the EFCA except for the secret ballot provisions which I have a huge problem with.

There is no secret ballot provision. Only the removal of a kind of veto privilege from management, who have done nothing but abuse it.

(I could be mistaken about (C) - I may be confusing that with decert petitions, which are sent to the NLRB.)

Umm, yes. I don't understand why you think I'm confused. The union organizer is a representative of the union being voted upon. Just as corporations can't put actual pressure on people except through representatives, unions can't put actual pressure on people except through representatives...

No, I think this is still a fundamental misunderstanding.

"Union" is an overloaded word. One use is to refer to an established national union that may be involved in the process, but that's fundamentally just a helper, providing a framework of constitution, contract starting point, negotiators and researchers, etc.

The way most of us here are using it is to refer to an entity that doesn't exist yet at the beginning of the organization process. The nascent entity the workers themselves are attempting to form by joining together.

A representative - possibly in the body of a national union organization, possibly not - is a necessary part of that, but the particular choice of representative is fundamentally WAY less important, both materially and philosophically, than the actual decision to join together to bargain collectively.

Sebastian: Umm, yes. I don't understand why you think I'm confused.

Because you were asserting that when someone signs a card agreeing or disagreeing that there should be a union, they were voting for or against their co-worker who handed them the card. You're completely wrong about this, and as Jack Lecou notes, it seems to be because you have the process of deciding whether or not to have a union, confused with holding an election.

Especially as the issue you and Brett are getting so worked up over, is the right of employers to insist on delays in organising a union. It's been established that the employees can insist on a secret ballot at any point in the process: so your argument appears to be a vehement objection to any means of delaying unionization being removed from employers. Not very democratic, but then you never pretended to be.

I agree with Jack:(A) is unnecessary because it is already the plain meaning of the law, (B) may be implemented by NLRB guidelines, or unions themselves

(C).... not so much. Any unionbuster, err, "Labor Relations Consultant" would advise mgmt, if they were to come into possession of any signed cards, accidentally OR OTHERWISE, to "misplace" them. The cards stay with the Union and the pro-union employees in the bargaining unit who do the "bulk" of the distributing and collecting of signed cards (roughly 90% of the total, in my personal experience), until they are presented to the NLRB for verification. PERIOD.

It wasn't just the fee to get something done, it was the fine if you do it yourself. I don't see how that works as a draconian measure to cut down costs.

I suspect there is some history behind this and if you wanted to understand it maybe talking to a janitor or the janitor's union might help. My guess is that the university had tried to shift some janitorial duties to lower paid (or salaried) staff to lower costs and that the janitors rightly objected.

Sebastian: "On the other issues, at the very minimum the employees who don't agree ...don't get word one in until after they are bound to a labor contract by the union that they never voted for. This is clearly true because of the language: "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". "

The "agreement" this language refers to is a "neutrality agreement", or card-check agreement, it does not refer to a contract. Section 158 (a)(3) of this title refers to current card-check recognition. So, no, it does NOT "bind" anyone to a contract they never voted for.

"If the Bush NLRB ruling is correct, they might have the ability to do so AFTER that point"

If you are referring to the Dana?Metaldyne ruling I mentioned in another post, it is correct. You can read it here:

http://www.nlrb.gov/shared_files/Board%20Decisions/351/F35128.pdf#page=2

I'm not sure we are talking about the same thing. As far as I can tell they are talking about the collective bargaining agreement. It doesn't appear that they are just talking about a card check agreement (though again I understand that I'm not an expert in this area).

158 (a) (3) reads:

It shall be an unfair labor practice for an employer—

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159 (a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159 (e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;

That certainly doesn't seem like it is limited to the card check agreement. In fact it wouldn't make sense if that was all there was to it, because of what it talks about for new employees. (Though I suppose "membership therein" might be some a pseudo-ambiguous phrase that some lawyer drove a truck threw at some point).

And to be clear, I wasn't questioning whether or not Dana/Metaldyne existed, I was questioning whether or not you felt it was correct. (And more to the point whether the labor lawyers who are likely to have influence in Obama's administration are likely to think it is correct). Because if it isn't, or if the Obama administration is going to act against it, your whole argument falls down.

That certainly doesn't seem like it is limited to the card check agreement. In fact it wouldn't make sense if that was all there was to it, because of what it talks about for new employees.

IANAL, and I find the NLRA, particarly 158(a)(3), extremely difficult to grok.

However, the NLRB rules, horribly written as they are, are marginally easier. That and a glance at the actual petition form, gives me no reason to believe that there is any reason an "RD" (decertification) petition could not be filed as soon as a representative has been recognized.

Specifically, in section 101.17:

If there is a certified or currently recognized representative, any employee, or group of employees, or any individual or labor organization acting in their behalf may also file decertification petitions to test the question of whether the certified or recognized agent is still the representative of the employees.

There's absolutely no mention of any need for a collective bargaining agreement to already be in place, all you need is a recognized representative.

Starbucks is supporting it for the second reason. http://cornellsun.com/node/26594>They've been in trouble for union busting before.

Just to sum up here:

1. Polls suggest that something like 55-60% of the non-union workers in this country would join a union tomorrow if they could. That means either a clear majority of workers in every single workplace wants a union, or, more likely, there are some workplaces where most workers do not want a union, and some where a vast majority want one.

Even if the latter is only, say, a third of the workplaces out there (the other 2/3 being anti or right on the fence), that's a lot of low hanging fruit for all these supposedly predatory professional organizers out there. Organizers have absolutely zero incentive to go after workers who clearly don't want them, or to risk falling afoul of the law. At least not until unionization rates in this country are something like 35-45%, maybe higher. That's probably decades off, even with card check. (And by that time, if it ever comes, the current completely non-antagonistic attitude of organizers toward workers will have become completely institutionalized - to the extent it isn't already.)

2. There is already plenty of protection for dissenting workers. If a number of workers are against the union, or feel coerced in the initial sign up campaign, it's pretty clear they can file a decertification petition at any time (well, as soon as there's someone to decertify, anyway) and get a secret ballot election held.

Moreover, I think the NLRB could and would investigate and/or hold a secret ballot election even before certification if there were any credible allegations of coercion/intimidation in an organizing campaign, or if they had reason to believe a substantial number of workers were opposed.

(And again, these protections mean it is extremely unlikely that the incentives of organizers lie with antagonizing any workers. Nor has anyone shown any compelling evidence to the contrary.)

3. Card check is about streamlining the process for workers who clearly want a union. Given #1 and #2, and the supporting fact that most organizing campaigns today receive not just majority sign up, but often something like 70% or more (only my anecdotal impression, but certainly no one has shown me any evidence to the contrary), there just doesn't seem to be any compelling reason at all to force workers who clearly want a union to wait an additional couple months and to sit through a de facto mandatory election. An election which is, in the vast majority of cases (see #1 and #2), simply a pointless formality.

(My objection to elections would be mitigated somewhat if an election really could be guaranteed within a couple of weeks, but I find that unlikely. There are lots of difficult to overcome bureaucratic reasons it takes a while to arrange one. It's highly dependent on things like staffing levels at NLRB, for one, and there are probably tons of perfectly legitimate logistical details to work out on at least three sides. You'd really have to make holding them quickly a very high political priority, which just doesn't seem likely. And in the end they'd still be pointless...)

If you want a union - and lots of people do - you should be able to simply sign up for one.

I'm not sure where you get the 55-60% of non-union workers want to be in a union poll. That is surprising to me.

But as far as polling goes, this Zogby poll suggests that a majority of union members think that secret ballot is more fair than card check:

Question 12: Do you believe workers should have the right or should not have the right to vote on whether they wish to belong to a union? Yes 84%

Question 13: I’m going to describe two ways that workers might be asked to decide if they want to become part of a union and ask you which of the two ways is most fair. In the first way, a union organizer would ask workers to sign their name on a card if they wanted to be part of a union. The worker would sign his or her name on the card if he or she wanted a union, or the worker would tell the union organizer he or she would not sign the card if he or she did not want a union. In the second way, the government would hold an election in the workplace where every worker would get to vote by secret ballot whether he or she wanted a union. Which way is more fair?

53% said secret ballots more fair, 41% said card check. that is a 12% margin.

14. Currently, the government is responsible for holding secret-ballot elections for workers who are deciding whether to form a union, and for making sure workers can cast their votes in a fair and impartial manner. Do you agree or disagree that the current secret-ballot process is fair?

71% said Agree

15. Do you agree or disagree that stronger laws are needed to protect the existing secret-ballot election process and to make sure workers can make their decisions about union membership in private, without the union, their employer or anyone else knowing how they vote?

63% Agree

17. Should Congress keep the existing secret-ballot election process for union membership, or should Congress replace it with another process that is less private?

78% said keep the existing secret-ballot.

Also look at the answer about how many employees should vote for the union before they all become bound to it. Remember these are *union employees*:

Question 18: Which of the following percentages of workers do you feel should have to vote for a union before that union represents all the workers?
At least one-third of the workers 9%
At least half the workers 27
At least two-thirds of the workers 51
All of the workers 11
Not sure 2

So among union workers, 62% believe that the union should be required to get 2/3 or more of the workers behind them.

"That means either a clear majority of workers in every single workplace wants a union, or, more likely, there are some workplaces where most workers do not want a union, and some where a vast majority want one."

Or that unions are like a great many other things with advantages and downsides: They're something people will say they want, if you ask them divorced from all the costs and disadvantages, but the actual decision of whether or not to join one isn't divorced from the costs of doing so.

None of which actually addresses my points, and I think I've addressed this awful survey language before:

Question 12: Asking people if they "should or should not" have the right to vote is a crazy misleading question. First, it threatens a "right". Second, it's meaningless. Believing you should have the right to vote is not incompatible with majority sign up, which preserves that right. The amazing thing is that they actually found 16% who said no or didn't answer.

Question 13: This goes into lots of not-necessarily-accurate detail about a possibly awkward (but not necessarily threatening) conversation with an organizer, and then totally fails to actually describe the entire process - such as the fact that the card check process and conversation has to happen first even if there's an election later, and that people would still get to have an election if they wanted one. It also comes fast on the heels of Question 12, which talks about taking away the right to vote. (And that objection to the priming applies all the way down the line.)

And even with all that, 41% said yes to card check...

14. Doesn't even seem to address card check. It just says that any elections that are held should be held or supervised by the government. As opposed to say, the employer, which is I'm sure what plenty of people had in mind as they answered.

15. Again, employer is doing at least as much work there as union. Probably a lot more.

16. This is an incredibly misleading description of the card check process. The question basically amounts to "do you like apple pie".

....

18 is interesting, but hardly threatening to the majority of organizing efforts. It's also a non-sequitur, since EFCA doesn't change any of the majorities involved.

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