Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Tuesday, March 10, 2009

Employee Free Choice Act

The Employee Free Choice Act was formally introduced (once again) in Congress today. There are many excellent provisions in this act, including mandatory injunctions to attempt to prevent rampant unfair labor practices. Although these other parts are probably more important, the most controversial section is the majority sign-up provision.

As I understand it, under current law if 30% of the employees in a given "bargaining unit" sign valid authorization cards to designate a particular union as their collective bargaining agent, the National Labor Relations Board will call an election to certify that union. The Employee Free Choice Act would automatically certify the union without an election if more than 50% of the employees sign such authorization cards. (Currently employers may accept a union chosen by a majority sign-up, but they can always demand an election.)

I was hoping someone could explain why the majority sign-up procedure is the right way to go. Other than the obvious inconvenience of having to hold an election, the only concern I can see with the election process is that it gives the employer time to fire and intimidate workers prior to the election. While such employer actions are of course illegal, they certainly do occur--sometimes on a massive scale--and such allegations are difficult to prove. On the other hand, the majority sign-up procedure is also fraught with opportunities for abuse which, while also illegal, are similarly difficult to prove. (I happen to have witnessed such abuses firsthand.)

So I wonder, am I missing something big here? If not, is there not some other option that could safeguard workers prior to an election? A snap election, held in a matter of days? Perhaps a rule such that, if any such intimidation is proven, the union can then proceed by majority sign-up without any election?


Anonymous said...

There are a number of things that demand the Act at this juncture. I will boil it down to a couple, but needless to say, they all to a certain extent stem from the uselessness of the NLRB.
Initially, there is a stark difference in how organizing is persued in the labor market today. The use of a organizing drive to get recognition cards signed and then hold an election is used primarily in service industries - janitors, meter maids, hospital/hospice workers, etc. Elections are sought simply because of the sheer numbers of workers that can be organized at once (it is not unheard of to have 40,000 workers organized in one election).
However, in the non-service construction market, elections are rare given the time and effort necessary to organize 5 or 6 workers. Instead, picketing and handbilling and other pressure is used. In California, the smartest tool is a lawsuit - based on unfair competition, prevailing wage violations, or other reason. Essentially, the lawsuit is used to make the employer realize that it is in his/her best economic interest to become a signatory.

The problem with the two different approaches is that the group of workers that need to be organized by the election system - highly skilled, high wage and benefit earners (essentially the folks who can have a solid middle class existence without going to college due to apprenticeship programs), are prevented from doing so because the NLRB, over the last 15 years has removed any real detriment to an employer harassing or firing an employee for signing a card or even discussing a union.

An example might prove useful. After law school I worked for a union side labor law firm. During an organizing campaign at UCLA, 4 workers (including the superintendent) from a non-union ironworking company beat up a union ironworker on an adjoining worksite after hours. The union member was beaten with a pickaxe handle. This was the latest in a stream of anti-union activities on the part of the non-union company, including firing a worker for talking to a union member, calling union workers "union bitches", and hitting a couple of picketers with their cars. A NLRB complaint was filed, and I shepherded it through the NLRB system. The NLRB agent was so excited because he was dealing with "real 1960's stuff" that he never got to see. In the end, the non-union company EIGHT MONTHS later received a reprimand.

While I sympathize with Dr. S's concern given his experience with (I'm assuming) the Teamsters. The balance of corruption heavily tips toward the employer.

Anonymous said...

By the way - the above was from me.


The Law Talking Guy said...

It is worth asking in designing any electoral system where the balance of power lies and where the opportunities for corruption lie. I think rolleroid makes a good point, which the current system bears out, that most of the power is on the employer's side, as is most of the motive and opportunity for corrupt and illegal behavior, so the rules should be reformed to take account of that problem. Unionization is never easy because most employees in most times and places are afraid to rock the boat or do anything that might risk their jobs, and even signing a union card is widely and correctly believed to be a threat to one's employment.

The other point I would make is that employees can always have an election to de-certify a union. It requires a petition by only 30% of the bargaining unit. So if the card check procedure is producing unions that employees really don't want, they have a tool available and - no doubt - their employer's tacit help.

The specter of Big Labor sending in hooligans and mobsters to shake up (and shake down) employees of a smaller business by coercing them into signing check cards - this is the boogeyman of the right, but it not terribly realistic.

Frankly, labor organizing is expensive work, and will remain so under a check-card procedure. That is why there is relatively little organizing going on these days. I am quite sure that the experience of organizers will be that even procuring cards for the card check procedure is hard, thankless work with skeptical employees overwhelmingly reluctant to sign a document their boss can (and likely will) use to try to fire them, cut their hours, deny promotions, all the stuff they need for their families.

Dr. Strangelove said...

Don't get me wrong, guys. I realize the point of the majority sign-up provision is to make it easier to unionize--that is of course why the conservatives loathe it. And I fully agree with LTG and Rolleroid that the balance of corruption lies with the employer in the large majority of cases.

But the argument I'm hearing here seems to be, "The majority sign-up provision needs to be understood in context. It is acceptable because it helps even out the balance of power." In other words, two wrongs make a right. I have not heard anyone argue that the majority sign-up provision is less susceptible to fraud or inherently more democratic than a majority vote by secret ballot. (Imagine choosing Congressmen by majority sign-up.) It also appears that majority sign-up cannot be used to de-certify a union.

One last note here. When it comes to those check cards, no one was talking about Big Labor sending in hooligans and mobsters. There is no need: Social pressure is so much slicker and easier. Besides, as the mortgage crisis has sadly demonstrated for all to see, a little old-fashioned fast-talk is all it takes to persuade millions of honest folks to sign documents they do not understand.

The Law Talking Guy said...

As far as "two wrongs make a right." I think that's missing the point entirely.
Why is it your idea that a "secret ballot election" must always be the default for choosing whether to unionize, rather than a petition process? Petitions are used in all kinds of places.

If the electoral procedure is so flawed, another procedure is needed. A card-check process works fine. In my city, to get preferential parking permits, all you need is a (super)majority petition. The presumption is that the signers of the petition are, in effect, casting a sort of ballot, but without the hassle and expense of a formal election. Petition processes are used all the time. Most people would consider strange if we were to change the initiative process in California to require that a majority of *all* voters sign a petition before it goes on the ballot. Most would assume, I think correctly, that if a majority were willing to sign their names, a subsequent election would be unnecessary - particularly if the rule were that a 30% minority could subsequently trigger an election by petition.

Dr.S - I couldn't disagree with you more about social pressure. First of all, the social pressure all runs the other way: don't rock the boat. I mean, how likely are YOU to put your name on a document that you know (1) will anger your employer and (2) will be seen by your employer, even if (3) you are told by some lawyer that you "can't be fired" because of it.

Dr. Strangelove said...

I have seen people give into social pressure to sign union authorization cards. I have also heard others swear all they thought they were doing was signing a card calling for an election, nothing more. When a pair of trained union organizers buttonhole someone, the social pressure is very real. That other social pressures also exist (fear of signing the card) does not "cancel" it out. It just means the process is more flawed.

You claim election procedure is more flawed than the majority sign-up procedure, but I still see nothing of the kind. The "petition" method is equally susceptible to the harassment that has been described. (Indeed, the harassment Rolleroid specifically described was associated with the card sign-up and organization, not with the election.) The majority sign-up process is simply more open to abuse than a secret ballot election. That is why secret ballot elections are the gold standard in democracies and petitions are not.

Again, I realize employers abuse the system badly in many cases. But I would prefer to address the abuse directly than apply a "patch" that merely invites additional abuse of a different kind.

Anonymous said...

In this day and age, I think social pressure is ultimately and completely trumped by economic pressure (employers threatening and firing employees). "Having a job is the new raise" is no more apparent than right now, and make no mistake - employers will take advantage of that.
Remember - there are thousands of employers right now that are more willing to pay $400 to $600 an hour to their attorneys fighting organizing efforts rather than provide prevailing wages (hell, living wages - see the hotel workers in Los Angeles) to their workers.


The Law Talking Guy said...

Dr.S- I wonder if your opinion is related to union organizing among graduate students. Graduate students are in a very different situation from regular employees. They do not need to fear for losing their 'jobs' as a result of union membership, particularly when their faculty 'employers' are very well disposed towards such unions in the first place. The university is a very exceptional place in this regard. If graduate students believed that signing a union card could get them kicked out of school or get their advisors to quietly sabotage them, it would be a very different place.

Dr. Strangelove said...

Yes, my only direct experience was related to union organizing among graduate students.

LTG says workers are reluctant to sign union authorization cards because they fear their employer will find out and punish them. This makes good sense. So wouldn't it be great if we could somehow devise a simple process that would let employees express their desire to unionize without revealing their names? Oh, but wait, we already have such a process: It's called the "secret ballot."

If we follow LTG's logic, it should be harder for a union to get 50% of workers to sign their names on a public document than to win 50% support in a secret ballot. Yet for some strange reason unions crave the option for majority sign-up while employers fear it. How can this be?

Clearly it must be that everyone involved knows that unions will have an easier time organizing by majority sign-up than by winning elections. My question is simply: why is this so? I have offered the "socal pressure" argument, which LTG and Rolleroid soundly reject. Fine--then offer me some other explanation. I keep waiting for someone to explain why there would be less harassment during an extended card drive than in an election, but no one has asserted this. All examples of harassment mentioned so far appear to have occurred during the sign-up phase, which would actually be extended if 50% were required.

The Law Talking Guy said...

Dr.S- I think you misunderstand the electoral process, perhaps. Elections cannot happen by fiat - they are the second step - the card check is the FIRST step. The period BETWEEN the card count and the election is where so much of the harassment takes place. Once 30% of the cards favor unionization, an employer can recognize the union or call for an election. For obvious reasons, unions wait until they get at least 50% before presenting the cards in hopes of dissuading the employer from going through with an election process.

You are correct that IF we could implement a rule where a union organizer could demand a secret ballotelection within 30 days at any company EVEN WITHOUT a card check of any kind, then that would provide the least opportunity for intimidation.

But nobody will go that far! Businesses would take up arms if the unions were able to call elections in their firms without even a petition drive first! The question is whether we have a two-stage process or a one-stage process.

The two stage process is obviously a severe problem, since you ask people to sign a card without guaranteeing them that IF their colleagues also sign up, they will get union representation BEFORE the boss reads their names.

Dr. Strangelove said...

LTG: I understand the electoral process just fine, thank you very much. (See the original post, paragraph #2: "under current law if 30% of the employees in a given 'bargaining unit' sign valid authorization cards to designate a particular union as their collective bargaining agent, the National Labor Relations Board will call an election to certify that union.") Also, from the very beginning I anticipated the claim that the period between the card count and the election might be the time of harassment. (See the original post, paragraph #3: "the only concern I can see with the election process is that it gives the employer time to fire and intimidate workers prior to the election.")

So let's try moving forward here. In the previous comment, I wrote pointedly, "I keep waiting for someone to explain why there would be less harassment during an extended card drive than in an election."

I am still waiting. You claim that the "BETWEEN" period is the problem. But is there any actual evidence to support such a claim? As I wrote in an earlier comment, all of the harassment described on this thread so far has been, "associated with the card sign-up and organization, not with the election."

And even if this is the case, is eliminating elections the best answer? Once again, I already asked this question! In fact, this was the main question all along! (See the original post, paragraph #4: "Is there not some other option that could safeguard workers prior to an election? A snap election, held in a matter of days? Perhaps a rule such that, if any such intimidation is proven, the union can then proceed by majority sign-up without any election?")

Please, please try re-reading the original posting before you accuse me of misunderstanding. This is very frustrating to me.

The Law Talking Guy said...

Yes, let's try moving forward here.
"Clearly it must be that everyone involved knows that unions will have an easier time organizing by majority sign-up than by winning elections. My question is simply: why is this so?"
This is why I accused you of misunderstanding. Let's rephrase your question to reflect our common understanding of the law:

"Clearly it must be that everyone involved knows that unions will have an easier time organizing if they only need to get a signup rather than BOTH signup and winning an election."

Asked that way, it seems obvious what the answer is: A two-step process is harder in and of itself than a one step process; and here, we know that having a second step at all makes the first step more difficult.

Lurking in the background of your question is the notion that we might expect to see unions gather signatures (cards) but later lose the elections because they actually just got cards through peer pressure, which the employees will repudiate in a secret ballot. I don't think there's much evidence of this actually happening.

Dr. Strangelove said...

Ah, but bear in mind it only takes 30% to call an election, not 50%. You do not appear to have given that difference any weight in your analysis. I certainly grasp the concept that one step is easier than two. But here the "steps" you are comparing are far from equivalent.

If it is as difficult to persuade workers to sign the cards as you claim, then garnering those additional signatures should pose a formidable obstacle just in terms of sheer numbers. Furthermore, those most willing to sign will likely already have done so, and the employer likely will ramp up the intimidation factor as the count progresses, making the whole thing even harder.

This is one of those issues, like issuing driver licenses to illegal immigrants, that is just never going to make sense to most people. I had a conversation with some friends recently whom one would generally not consider to be "up" on politics--but nevertheless they sure had heard about this card-check thing! Indeed, they were the ones who brought it up, not me. It sounded very fishy to them that unions were trying to circumvent the secret ballot--and these friends of mine are, in fact, proud members of unions themselves. (I found myself trying to argue the case for the majority sign-up rule, and it was not a winning position, I'm sorry to say.)

They also brought up the "peer pressure" argument all by themselves. As one of them put it (as best I can recall), "Instead of voting in private, Obama wants to let the unions look over people's shoulders as they vote. You know, take them out for a beer and then slide the card in front of them. It's nuts. And the unions will remember who didn't stand with them, you'd better believe it."

(And of course unions are not stupid. They will not call for an election unless they are pretty sure they can win it. So we are not likely to find many instances of "repudiation" in any event.)

As I hope I have indicated, I honestly want to make it easier to unionize. So I have a better proposal. Since getting those cards signed is apparently so difficult, why not just lower the petition threshold? I mean, most people I've spoken to find 30% to be a strangely high threshold anyway. So how about lowering the requirement to, say, 10%? And by the way, the law already forbids more than one election per year, so frivolous elections are not likely. We could extend that to once every two or three years, if it is a real concern. This is an idea that would make so much more sense to most people. It is much easier to make the argument that we should give unions a better chance at holding elections, than to give them a walk.

The Law Talking Guy said...

As I may have mentioned, unions routinely get 50% of the signature cards before confronting the company because they want to dissuade them from going through with an election and trying to intimidate workers in the process. As a practical matter, we have been operating with a 50% threshhold all along.

The UNION can't call for an election; only the company can. I know you understand this all perfectly, so I'm just making sure your comments aren't misunderstood by others. The way this works is that the COMPANY has the option of accepting the union or calling for an election when presented with 30% cards. So that is why unions present 50% at the outset.

Your friends who thought union peer pressure was so big in this regard must be pretty secure in their jobs. Most people would prefer to irritate a union - especially one that might never be certified- rather than to irritate their employer.

Let's get down to brass tacks. The only reason to object to the card check proposal is the "peer pressure" argument, the notion that people will sign union petitions unthinkingly or under pressure, but that such people would repudiate that in a secret ballot later if they were given the chance, so we must give them that chance. Is this a realistic argument? Are there many people who sign union cards/petitions under duress? I suggest that if this were so, companies would favor quick union elections to get rid of the pesky unwanted organizers. They don't behave that way.

Dr. Strangelove said...

Elections are now and have always been the gold standard for Free Choice, not petitions. The real question is not "Why reject the card check?" but rather, "Why skip the election?"

Other than perhaps saving the unions some time and effort, no one else has been able to explain why unions wish to avoid the vote. I am reminded of Che Guevarra's sarcastic line in Evita, "How annoying that they have to fight elections for their cause! The inconvenience--having to get a majority."

And the truth is you're just never going to persuade most Americans that it is somehow more democratic not to hold an election. It doesn't pass the smell test. So why go there? Why not consider the reduced petition threshold proposal? Reducing the barrier to holding elections is a rather easy sell as being more fair, more pro-Free Choice, more democratic.

Do I have evidence that peer pressure is used to get people to sign cards? Actually yes, I saw the UAW at work. But of course you discount that because you say grad students are a special case. While I must agree grad students may be more malleable under such pressure... Surely this suggests strongly that the UAW trains their organizers to use these tactics? Furthermore, my aforementioned friends (both currently sadly unemployed, actually, which blows your theory) also have some familiarity with unions from the inside. Although, as an entertainment-based union, perhaps you will be tempted to discount their experiences too because they are also too "white collar" to count. Except that such higher-paid professionals are precisely the sort of group Rolleroid says will be targeted by the unions.

Incidentally, another useful law change would be to have a neutral arbitrator at NLRB immediately verify the names, rather than letting the employer see them. Most people would think this was another improvement on the process. And let's hold the elections quickly and ensure the NLRB pays for all necessary expenses. Again, a change that makes sense and folks will support. If the elections are inconvenient and open to some abuse, let's remove the worry and reduce the abuse. From the standpoints of both public relations and simple common sense, isn't this the better way to go?

Dr. Strangelove said...

One more thing. When faced with unionization, companies do what most conservative organizations will do when confronted by the possibility of unwanted change: stall, obstruct, and fight. It is instinctive and universal. So while a company might cleverly avoid unionization by supporting a snap election, it is not a realistic to expect such behavior. Most companies will simply do what they can to stall and prevent all steps toward unionization, acting as though unionization were the end of the world.

You have no reason to disdain the "peer pressure" argument, except maybe that you just don't want to believe those poor, nice unions could ever do such a terrible thing. But try talking to some folks who have dealt with unions, and I know you will hear that the unions play hardball too.

Dr. Strangelove said...

Let me be clear, since I can see I have not been, that I support unionization in most cases and I fully understand why unions have had to learn to play hardball sometimes. It's a tough world, and employers can be very nasty and vindictive--and often are in these cases. So I don't blame them for using everything in their power. But it would be naive to imagine the unions would not use peer pressure tricks to try to get cards signed--and it also (sadly) naive to imagine that peer pressure is ineffective.

The Law Talking Guy said...

And I think it is naive to imagine that peer pressure is going to outweigh the fear of losing your job, especially now.