The National Journal's latest poll of leading political bloggers from the Left and Right is now available. They disagree sharply on the Obama stimulus. The Left's average for the right amount for the stimulus was $746 billion. The Right's average was $34 billion, with plenty of Righties, myself included, favoring "zero" as the ideal amount. I wrote: "The solution to economic problems caused by excessive borrowing is not to borrow lots more money."
As to whether Obama should push card-check legislation (the proposal to deprive employees of the right to a secret ballot vote on whether to unionize), 88% of the Left says yes, while 76% of the Right says no. The right-wing support for Obama pushing card-check comes at least partly from the belief that it will harm him politically. I agree with the political observation, but I'm much more concerned with protecting rights than with Obama's political fortunes. I wrote: "Taking away the secret ballot is a direct assault on the right of free association."
Will card check pass next year? 44% of the Left thinks so, as does 24% of the Right. Several bloggers predicted that card-check would be pushed, but would eventually be traded off to ensure passage of other items on the union lobby agenda.
Blogger Consensus: Card-check's chances iffy:
Southern Republicans and Democrats should push for it.
Yeah, let's just go ahead and have that depression and get it over with - that's the ticket!
Card-check's problem here is that simply does not involve lucrative appropriation opportunities. Congress will concentrate on those first.
"Congress is the only distinctly American criminal class." - Mark Twain.
But card-check might go through during the second year of Obama's first term.
That's illegal for employers to do under current labor law. It happens, at times, but it's an unfair labor practice and there are lawyers who make a good living bringing these suits on behalf of individuals.
There's horror stories about both evil management and thuggish labor coercing, threatening and even stomping workers who don't want to sign a union petition.
Secret ballots are the hallmark of democracy.
Unions have a collusive advantage that outweighs any inside benefit the company has. When the UAW strikes, they pick 1 automaker rather than all 2. So 2/3 of the union still works, and the 1 struck company is being hurt relative to the other 2, and loses market share that is hard to get back. To be fair, the big 3 auto makers would have to pool income, and share it with the one being struck so they can last out the strike.... just like union dues from workers from the other auto makers fund benefits to strikers.... and of course, the union as an entity is not hurt at all.
If the UAW struck all three at the same time today, they would be toast.
I saw that a Wal*Mart store in Canada went union. I'd like to see them add a 5% surcharge, on the sales slip, called "union payment" to educate the consumers just what a union costs them.
It's true that intimidation can come from either side, but the data suggest that most of it has been coming from the employer's side.
The secret ballot is one useful method for producing free and fair elections, but the current procedure for having unionization elections is not working. The EFCA provides one possible solution to this problem: starting the union as soon as signed cards come in, and not requiring an election with secret ballots until a year after the union has already been running. I'd love to see someone who disagrees with this solution either 1) propose a better solution or 2) argue (with empirical support) that the current system is doing just fine at producing free &fair elections. So far I haven't seen either.
If there were a god, I'd certainly thank it that neo-Hooverites like Prof. Kopel will not be running the country during the turbulent economic times this country will be facing over the next four years.
The one union drive that I personally observed failed when the employer prevented a vote. The unionization leaders were gone withing a year.
Maybe the compromise is no card check, but compensation of at least 10x any wages lost + emotional distress when an employee is fired for union organizing. Better yet, employers could run a shop in which they treat their employees good enough that 50% won't sign union cards. Happy workers don't sign union cards.
Explain to me, in words of one syllable, exactly how abolishing the secret ballot for union organizing solves that problem?
Disclaimer: I am not unbiased. I have personally had my [bicycle] tires slashed during a union dispute. The union called a strike, I was a software developer working on a computer system that had nothing to do with the strike, the company asked us to do the strikers' work in return for my normal [higher] pay and forebarence of the due dates; we refused. The union asked us to not do our normal job, which would have involved slipping the contract's dates; we refused that as well. We were subject to daily physical intimidation and damage to our vehicles.
-dk
The same protections should be granted to any client of any establishment where lawful business is done against those who would use physical intimidation to deter them from visiting the establishments.
-dk
-dk
In my view, before abandoning the secret ballot, we should adequately fund the Board's enforcement efforts and require the Board itself to be more efficient in case processing. Making the Board into a more neutral adjudicative body that regards precedent as something other than an expression of current political power would also help. Lessening the overt politics in Board appointments might also reduce the number of times Congress lets appointments languish because of political wrangling, leaving the Board understaffed for substantial periods while cases remain undecided (on the other hand, that doesn't always work well with the Article III courts, does it?).
Disclosure: I'm a labor arbitrator, one of the folks who presumably would be called upon to conduct interest arbitration procedures (under the other part of the EFCA) when parties are unable to agree promptly on an initial contract. The EFCA would be good for business, but I think it's bad public policy.
But moroever, David Kopel misstates the issue with card check when he says: the proposal to deprive employees of the right to a secret ballot vote on whether to unionize
The card-check provision does not deprive EMPLOYEES of any right to an election they now have. Under current labor law (as has existed since the NLRA was passed), unions and employers are allowed to agree voluntarily to card check. In other words, the union comes in to the employer's office and says, "here's cards signed by 60% of your employees saying they want us to represent you." The employer is and long has been able to recognize employees on that basis, without an election. And this happens more often than you might think.
The only change EFCA would make would be to take away the employer's option to insist on an election when the union has a majority of cards. Specifically, unless the employer could show that the card majority was obtained through fraud, coercion, or something along those lines, the employer would be required, as opposed to allowed, to recognize the union in my scenario above.
So this doesn't change any rights of employees. It does take away the employer's right to insist on an election. If you oppose card check because you want employers to have more rights, OK, that at least accurately reflects what the law would do. But don't pretend card check takes away rights from employees.
Also, note that a secret ballot is a hallmark of democracy in elections to public office. Forming a union is not the same as electing a mayor. If a majority of the workers later vote (via a secret ballot) to fire the union and go non-union, there's nothing to stop them from doing so.
Capital doesn't like unions, is the long and the short of it. And no wonder. Union workers have much higher average wages and benefits and a say in their working conditions. Unions shift a modest amount of the production of a free market from owners to workers. Free market advocates should love that, but, unfortunately, a lot of people who call themselves advocates for the free market are plain old capitalists.
I honestly don't see how a rule preventing an employer from firing someone they don't want to associate with is any more fair than a rule forcing an employee to do the same.
To the extent you are asking a serious question, rules barring workers from quitting employment -- at least to the extent their would be a specific enforcement remedy -- violate the 13th Amendment.
Also, you realize your analysis would apply to anti-discrimination laws as well, right? Employers can't fire an employee because that employee is black (or white), male (or female), Jewish (or Christian, etc.), but if I don't want to work with a Jewish guy, I can quit (and try to find an employer with no Jews as employees).
Finally, you realize that under basic at-will rules (which I'm guessing you support), an employer could legally require employees to join any old organization the employer listed as a condition of employment, right?
Suppose a potential bargaining unit is obviously ripe for unionization. Further suppose two unions want certification; one like the oil, chemical and atomic workers' union that is known for being professional, and the other like the teamsters that is known for knocking a few heads. Who gets to 50% faster?
-dk
Do tell.
Whichever union turns in its cards second can force a three-way election (via secret ballot) between union #1, union #2, and the option of having no union. Like many of the "big questions" about unions and union law, this one is easily answered if you have any actual experience working with or in a union.
Also, speaking as a newly-minted Teamster, I neither saw nor heard of any of the abuses people like you casually attribute to the Teamsters. My experience of them has been polite and professional.
If a union were simply a private, voluntary organization that an employer could choose to do business with or not, and employees could choose to join or not, then of course a free market advocate should support it. But the entire topic of this thread -- that the government decides whether and how an election can be held to create a union -- shows how far divorced any of this discussion is from "free market" principles.
"Unions shift a modest amount of the production of a free market from owners to workers."
No economist would be satisfied with this statement. The incidence of a change depends on the market, not "who I would like it to affect most." It's just as likely that the burden of increased labor costs would fall almost entirely on consumers: especially low end consumers who already have problems affording cars.
It's the same problem with trying to tax corporations. People can be rightly disgusted that executives who appear to be utterly incompetent and who basically caused worldwide economic disaster are still getting paid millions in bonuses (some of it from corps that got taxpayer dollars, no less). But just because those people are bad and unworthy doesn't mean that things like taxes on their corporations will make them suffer. When you tax a "corporation" you are affecting an entire market, and the burden of the tax could just as easily fall on poor consumers or laborers as it does on the top execs.
You're misreading Kopel's statement. Card check would tend to reduce the likelihood of a secret ballot vote on whether to unionize. On the other hand, it would tend to increase the likelihood that the workers would in fact unionize. There's nothing contradictory or intellectually dishonest about stating that.
Unions are private organizations of individuals which the law grants certain rights and privileges to in terms of bargaining with corporations. Corporations are also private organizations which the law grants certain rights to, as employers, as limited-liability groups, etc. It's still very much within the realm of private negotiations.
It's clear that political majorities want to see some limits on the bargaining power of employers vis-a-vis individual employees. The alternative to unions is direct government regulation of the workplace. It's no coincidence, in my opinion, that we've seen a great rise in "employment law" rights in federal and state statutes as union density in the private sector declines. Libertarians may pine for the pure "at-will" days, but they ain't coming back.
Can't Find A Good Name:
I'm with Josh. If EFCA passes, employees will have exactly the same rights to an election to certify or decertify a union as they have now. EFCA's first provision will only alter the employer's right to insist on an election. If a union has a majority of signed cards, employees currently have no right to an election if the employer doesn't want one.
For those employers who choose an election over voluntary recognition under the current regime, let me suggest that they aren't doing that out of a concern that their employees voices aren't really being heard.
David Schwartz:
In that same sense, being offered a job that is part of a union bargaining unit that a majority of your co-workers affirmatively chose to form is better than not being offered a job at all, right? It's the same principle, except in the union case, the co-workers get a say, not just the employer.
I agree with you about who primarily wants an election and why under the present law. But I don’t think the matter is quite as simple as your post suggests. In my more than thirty years of dealing with these issues, I’ve seen many occasions on which a number of employees in the prospective bargaining unit are opposed to unionization for a variety of reasons, including religious objections, a fear that restrictive union seniority rules will impede their advancement into more desirable assignments within the unit (i.e. they’ll have to “wait their turn” instead of getting ahead based on individual hard work and skill), and prior negative experiences with unions. They, like the employer, may strongly prefer an election campaign in which they have an opportunity to convince their fellow employees to vote against the union rather than being faced with a fait accomplit. And there are, in fact, usually a number of employees who are “persuadable,” either by their co-workers or the employer (consequently, under present law, many union organizers do not file a petition for recognition unless they have gathered cards from substantially more than 50% plus one of the prospective unit, and even then, it is not uncommon for the union to lose the election). Often employees mistakenly believe that the union’s “pattern contract” (and its better wages and benefits) will automatically apply if the employer recognizes the union. When they learn that everything is “subject to negotiation” and that increased wages and benefits may cause the employer to consider subcontracting (which the collective bargaining agreement may or may not restrict), or perhaps to move to a different state, or to go out of business altogether, putting everyone out of a job, they may have second thoughts about that card they signed. I know that there are unethical employers and consultants who are adept at phrasing these “reality checks” in a way that “threatens” without crossing the legal line (at least as the line exists now), but the general point of my original post was that we should strengthen the existing enforcement framework to deal with those and similar situations more effectively before we decide to junk the secret ballot election altogether.
In sum, yes it is the employer who primarily loses something under EFCA, the right to insist on an election, but I don’t think it’s fair to say that there are no employees who might feel like they’re losing something, too (perhaps that’s why the polling has been indicating that card check lacks majority support?)
BTW, how do you evaluate Prof. Epstein’s arguments about the constitutionality of EFCA? I thought the free speech argument was quite weak, but others I respect are taking the argument about interest arbitration (the second part of EFCA) more seriously, at least in the absence of standards that guarantee an employee a “reasonable return on investment” (otherwise, they say, it would be an unconstitutional “taking”). What say you?
First, please call me Joe.
Second, I respect your experience with workers, and I understand some are skeptical about unions. But note that workers unhappy with unions can, if they get 30% of their co-workers to agree, demand an election where the issue is whether to decertify the union. EFCA doesn't change any of that. Indeed, under the NLRB's _Dana Corporation_ decision, in any situation where there has been a card check recognition, there is a 45 day window (which workers must be informed of) in which 30% can get a decert election scheduled. If union opponents among the workforce can't get 30% -- well, at some point, a minority shouldn't be allowed to thwart the will of the majority.
If I had the right to design legal rules myself, I might stress reforming various parts of the union election process which -- in the opinion of many labor scholars -- is ludicrously slanted in favor of employers and against unions (from issues of access to workers to the absurdly trivial remedies for employer ULPs during elections). But I don't get to.
Also, I think that while mandatory card check is a good political tool for union opponents (why are you against elections?), it's actually not that big of a deal. We already have mandatory card check in a number of big public sector jurisdictions, it exists in various Canadian provinces, and it existed under the NLRA until the 1950s.
Finally, you ask about Epstein's Constitutional arguments. With the caveat that I am not a Con Law scholar, my initial reaction to his objection to card check is agreeing with you that it's weak. The mandatory arbitration issue may be stronger, but I don't know enough to have a really informed opinion. FWIW, I think that's a more "radical" part of EFCA than mandatory card check.
I’m happy to call you Joe. Unfortunately, I can’t reciprocate. Because I practice as a labor and employment arbitrator and mediator, any opinion I express on any controversial issue is likely to offend a substantial percentage of my client base, so anonymity is important to me.
I suspect if you and I sat down together, we could devise strengthened rules that we would both agree would be fair to employers and unions alike and that would make EFCA totally unnecessary. I guess that is too much to expect of our political class, however. The one thing I would say is that it seems to me the EFCA originally grew out of an attempt by labor to avoid the effects of adverse rulings by the Bush NLRB. But the Obama Board will be very different, and many of those rules that have swung too far toward the employer side will swing back over the next few years (eventually they will probably swing too far toward the labor side if history is a reliable guide). So why is EFCA needed now?
You make a good point about Dana and the availability of a decert petition. I’ll think about it some more, but my gut feeling is that many employees don’t necessarily understand all the ramifications of unionization until they hear both sides, so I suspect I’ll end up where I started on that question. I do agree, however, that it is and should be entirely the employees informed choice.
On the interest arbitration issue, I agree with you that is far more radical than card check. I hear from people “who know people” that the strategy is to drop interest arbitration as part of a grand compromise to secure the passage of card check. Could be. Otherwise, I would expect the legislation to contain some minimal provisions, at least, on how interest arbitrators are selected and what standards they should apply.
Anyway, happy holidays to you.
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