Can Harkin Write A Real Employee Free Choice Compromise?
Sen. Arlen Specter (R-PA) delivered a setback to the labor movement earlier this week when he vowed to support a GOP filibuster of the Employee Free Choice Act (EFCA) -- but supporters of the union-organizing bill are proceeding undaunted with their grassroots lobbying efforts.
Meanwhile, back in the Senate, EFCA champion Tom Harkin (D-IA) has begun courting Republican supporters for a compromise deal, according to Roll Call. One suspects that a new organizing bill coming from Harkin, a stalwart progressive, would be more balanced between business and labor interests than the "compromise" being pushed by three corporate CEOs ... but that plan may be defining the right-ward end of what's doable.
Here's how Roll Call saw the lay of the land:
Democratic aides said that should a compromise be reached, it will likely end up somewhere between the card check bill as it's currently written and an alternative union organizing proposal floated by Starbucks Corp., Costco Wholesale Corp. and Whole Foods Market Inc. That plan would retain the use of secret ballots when workers decide to unionize and would not include binding arbitration provisions. It would, however, include a number of other provisions, including allowing unions access to employees during off-work hours and requiring a fixed date for elections.The alternative has been publicly criticized by Harkin and other pro-labor Democrats as being unacceptable. But privately Democrats acknowledged it was the first sign of movement from the business community that a compromise may be possible.
Democrats predicted they would likely use the existing card check legislation as the underlying bill, with any major changes being made through amendments on the floor.
Josh
Matt
Eric
I would think the binding arbitration is the most important part. One of the main tactics for busting unions is refusing to negotiate for a year, and then calling for a new election. That's why big business wants it out.
March 27, 2009 6:19 PM | Reply | Permalink
Is there really much reason for labor to accept a compromise? It seems like most of the things holding the EFCA back are either temporary (lack of Al Franken, cover provided by the recession, poor short-term organizing by proponents) or outright figments of the 2010 electoral cycle (Arlen Specter).
March 27, 2009 6:45 PM | Reply | Permalink
Spot on, mcc. Much as it grieves me to delay, waiting a year for the support to coalesce is a better risk than accepting a watered-down version.
An EFCA without binding arbitration is worthless.
March 27, 2009 6:51 PM | Reply | Permalink
An EFCA without binding arbitration wouldn't be worthless if it had some other equivalent provision. I would settle for a Sarbanes-Oxley style statement signed by the board, the CEO and everyone in the chain down to the establishment level that management negotiated in good faith. Followed by discovery.
March 27, 2009 8:29 PM | Reply | Permalink
How about just dropping the card check itself? Trying to do away with a secret ballot is somewhat of a lightning rod for public opinion, but some of the other provisions in the bill are probably far more valuabel than the card check itself.
So by doing away with the one provision that the uninformed public strongly opposes, and that the bill is named after, you can make it seems as a huge concession on behalf of the union, and Specter et al can save face for the 2010 elections...
March 27, 2009 8:37 PM | Reply | Permalink
Do you actually understand what card check is? Under the current policy, 33% of workers signing the 'card' expressing interest in a union to hold a secret ballot at the companies' leisure. Under EFCA, if 51% of the employees sign the card expressing interest in a union, then the secret ballot becomes OPTIONAL. Meaning that the union can then choose whether to hold the secret ballot or just go ahead and unionize. If greater than 33% of the workforce signs the card, but less than 51%, then the secret ballot is held as scheduled by the workers and union organizers.
Doing away with the secret ballot is a right wing boogieman to hide their opposition to A)binding arbitration and B)the removal of the company from the deciding and voting process (where they had no business in the first place)
March 27, 2009 9:19 PM | Reply | Permalink
SPOT ON. They can rail all they want about the secret ballot as "the cornerstone of Democracy" because it APPEARS to an uninformed public as "protecting" workers rights.
Of course, The premise that groups such as the Chamber of Commerce, NAM, ABC, National Right to Work LDF, etc, are spending HUNDREDS OF MILLIONS OF DOLLARS OPPOSING the EFCA to PROTECT “WORKERS RIGHTS” is LUDICROUS. The real issue here is KEEPING the advantages BUILT IN TO the system that they now enjoy.
The inclusion of the “card-check” provision has stirred much interest and controversy, and as such, card check probably requires MUCH 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 SCREAM & HOWL of “betrayal” or “spinelessness” should Democrats wind up settling for “ONLY” 80 percent. The LONG GAME is what matters here.
I would be willing to “give up” the card-check provision in exchange for a FAIRER election process, one that would:
1)SHORTEN the length of time between petition and election.
2)Give EQUAL ACCESS to employees to both Management and the Union during the period between petition and election
3)STREAMLINE the current “appeals process” for post-election objections, which is fraught with redundancies and opportunity for ENDLESS DELAYS, which hinders the process, and FRUSTRATES would be members, often to the point where they lose faith in the process and just give up. The law DOES NOT PROTECT THE PROCESS, rather, it serves to SUGGEST MANUVERS and DEFINE MANAGEMENT STRATEGIES. Which is what they would like to see unchanged, as I said before.
For example, if the NLRB finds that an election was "fairly" conducted and certifies it, the employer is obligated under the law to "bargain in good faith". HOWEVER THE EMPLOYER CAN LEGALLY DEFY the NLRB’s ORDER by engaging in what is called a “TECHNICAL REFUSAL TO BARGAIN.” Using this tactic, the employer REFUSES the Union’s bargaining request and forces it to file a NEW UNFAIR LABOR PRACTICE CHARGE with the NLRB. The NLRB must then initiate an unfair labor practice case based on the employer’s refusal to bargain, and seek support for the NLRB ruling from a federal appeals court. YEARS OF LITIGATION CAN FOLLOW. This takes place AFTER the NLRB’s LENGTHY 2 stage appeals process. (ours took 11 months, some take longer, depending on circumstances)
Now, does this REALLY sound like something that has been described by EFCA opponents as “the cornerstone of DEMOCRACY”?
I would be willing to make concessions on the arbitration and mediation provisions, maybe extend the period from 120 days to a year (or longer) before seeking mediation and arbitration. The 90-120 days is UNREALISTIC, and would actually deter any real bargaining in that period, IMO, as neither side would want to give an arbitrator a “starting point” in determining the final contract terms.
But the one thing I would NOT compromise on is the “penalties” provision, as we seem to be agreement on. THESE ARE A MUST, IMO. A common expression of U.S. labor law says that the NLRA is remedial, not punitive. The NLRB CANNOT PENALIZE an employer for breaking the law. It can only order a “make-whole REMEDY” restoring the status quo ante as the remedy for unfair labor practices. This is what typically happens when an employer breaks the law (commits a ULP):
The NLRB issues an order stating something like “we shall order it to cease and desist, to bargain on request with the Union,…” and further “order” them to POST A SIGN FOR 60 CONSECUTIVE DAYS “IN A CONSPICUOUS PLACE” stating (sarcastically paraphrasing) “We know we were naughty, but we promise we won’t do it again”.
OOH, THAT’LL REALLY SCARE ‘EM.
Of course, they WILL “DO IT AGAIN”, only because under current labor law, THEY CAN.
No, no compromise WHATSOEVER on the penalties provision. The counter to that would likely be a call for increased penalties against Unions who commit similar violations. Fine with me. Although I am supportive of Unions, I am not naive enough to think that Unions don’t commit infractions, also, and by increasing penalties on Unions as well as employers, it provides even MORE protection for workers, which is NEVER a bad thing.
Sorry, didn’t mean to be so long-winded, but this is my take on what I would like to see happen. I am interested in any readers opinion on what I have written.
March 28, 2009 2:16 PM | Reply | Permalink
Don't apologize. Some things are too important for a pithy sentence or two.
The old saw about the NLRB being remedial instead of punitive is a best-case scenario. In my case and that of my union, they basically ignored the text of the law in order to prevent binding arbitration from occurring, and left us to plead our case in the federal court system which is only too happy to let the NLRB's wisdom stand.
All these labor provisions were designed as improvements on the old days: strikes, violence against non-members, property crimes at the work site. These provisions mock the intentions of labor organizers, because the employer continues doing whatever it wants to do, only it will fire or harass outwardly pro-union employees into resigning.
March 29, 2009 10:51 AM | Reply | Permalink
"Don't apologize. Some things are too important for a pithy sentence or two."
Thank you, I appreciate hearing the opinion of one who KNOWS what the real issues are here. I am assuming the case involving your union (of which you wrote in your reply) occured under the Bush/Battista NLRB, without question (IMO) the WORST BOARD in the 70+ year history of the NLRA.
It is most unfortunate that all we hear, and can expect to continue hearing from M$M is parroted talking points designed to "frame" the issue mainly on the "secret ballot" CANARD. The similarities between the NLRB's election process' vs those of a federal election BEGIN and END with the actual Ballot, which is secret in name only: http://www.youtube.com/watch?v=AiBleUu-vJw
For those interested in comparing the similarities/differences of the NLRB's process vs Federal elections, American Rights at Work commissioned University of Oregon political scientist Dr.Gordon Lafer to do just that. Lafer engaged in a thorough examination of the political philosophy and published works of the founders, the historical development of electoral law and jurisprudence, and current statutes and regulations define "free and fair” elections. The report investigates how current union election procedures measure up to U.S. democratic standards. In spite of the presence of secret ballots, the report concludes that union representation elections fall alarmingly short of living up to the most fundamental tenets of democracy.
Read the report here (pdf): http://www.americanrightsatwork.org/dmdocuments/ARAWReports/FreeandFair%20FINAL.pdf
March 29, 2009 4:31 PM | Reply | Permalink
There also need to be massive fines for companies that violate workers' rights to organize. They've been getting away with figurative murder in recent years. The default has to be, workers want to form a union or join one; the burden has to be on the companies to prove otherwise, and they should get no break in doing so.
March 27, 2009 9:04 PM | Reply | Permalink
I just finished reading The Shock Doctrine. What was interesting was through out the book, unions were always enemy number one of the corporate elite whenever Friedman's free market ideology was put into action. They knew that a strong union would stop them dead in their tracks to reduce employment, wages and benefits, while at the same time jacking up prices to glean as much as they could from the consumers - last summer's gas crunch was just an appetizer. Now looking back at flat wages, reduced benefits and 401-K's in lieu of pensions for employees while the corprate side was making money hands over fists, it's quite clear corporate America is looking to turn the USA into a 3rd rate banana republic with the help of the very same people - can you say base - they'll screw over once the unions are gone and SCOTUS and the repuglicans are in total control of the government again. Unfortunately, the base is totally unaware they're being played for suckers. They actually believe they will be taken care of by the Party if they make every effort to help the corporate elite eradicate unions, liberals - voters, media and university. As far as corporate America is concerned, those die-hard repuglicans that form the base are nothing more than a commodity necessary to get to a specific point. Once the goal is achieved, the base won't matter - they served their intended purpose.
March 28, 2009 11:50 AM | Reply | Permalink
One strategy for the Democrats would be:
(1) Try to force a vote(s) on the bill, including procedural, to see just how strong support is. Probably opposition is strong enough to sustain a filibuster, but less than a majority, and only marginally stronger than the bill was last year, when it was obviously not going to become law.
Then, assuming the GOP can obviously block the whole bill, put forward EVERYTHING in the EFCA EXCEPT the card-checkoff provision, and see how many of those who have cold feet now (usually hiding their anti-union ideology or opportunism behind concern for 'free elections') will switch over. Probably it would be very few, but possibly enough to make 60. If not, and the GOP wants to filibuster, then the Democrats should force a filibuster, highlighting that it is opposition to unions and nothing to do with 'free elections' that is at issue. The filibuster should be kept going long enough to make it a major issue in the public consciousness. At some point, there should be enough defections from the fence-sitters to overcome the filibuster, perhaps with some very minor alterations in the bill to save face (for the fence-sitters). This important battle should also await Franken's seating in the Senate.
Once this step is achieved, then OTHER pro-union legislation can be put forward, also without the card checkoff. See which ones the GOP are able to block. Pass the others. Then, having strengthened the hand of labor muchly, it would be a good time to return to the card checkoff provision, and make the compromises necessary to pass it. Public opinion by that time, might be more pro-union, especially after the slump has lasted longer.
March 29, 2009 8:13 AM | Reply | Permalink