The last time I wrote about the Employees' Free Choice Act (EFCA), I got into a colloquy with a commenter named pmoser who put forward all the usual right-wing assertions about how terrible EFCA is and how wrong I was about everything I said without offering any, you know, evidence to support them. I suspected he was a) a conservative pretending not to be (we've had them here before though not for a while) or b) a lawyer (he said he was) for management. So I challenged him to come up with an argument that attacked EFCA instead of me or, if he couldn't do that, links to other people's arguments.
To my surprise, he returned long enough to do the latter, leaving two links to pieces he apparently thought would help explain what he now claimed was his central point (you can read his original comment for yourself and decide if that's really what he said) that "neither the EFCA story, nor labor's decades long deline [sic], is as [sic] a simple story."
I never said it was.
Of the two links he left for my consideration (he seems to have meant to leave a third to a piece he himself wrote but forgot to), the first is to a .pdf file that is a copy of a legal handbook from the law firm of Hirsch Roberts Weinstein LLP and the title alone is pretty much a give-away. It's called "An Employers' Guide to the Employees Free Choice Act" and the heading is, in big black letters, CLIENT ALERT.
Well, um, golly gee. Imagine that from an opponent of EFCA. Quel shock.
I knew we were in trouble when the first lie appeared in the second graf of the Introduction. Didn't take too long, did it? Here's the graf:
If enacted in its current form1, EFCA would make it much easier for unions to organize new members by taking away a worker’s right to vote in a secret ballot union election and by instead allowing unions to achieve recognition on the basis of signed authorization cards alone. (emphasis added) Um, no. Media Matters recently caught Fortune magazine (go figure) telling the same lie and outed them. (Via Avedon) In a December 19 article on the Employee Free Choice Act (EFCA) -- legislation that would allow union representation where a majority of employees in a workplace sign a petition -- Fortune magazine Washington editor Nina Easton asserted: "The union-backed Employee Free Choice Act eliminates secret ballots, and declares the union the winner if a majority of employees openly sign a petition." But the EFCA does not eliminate employees' rights to a secret ballot; as the New York Times reported, "Business groups have attacked the legislation because it would take away employers' right to insist on holding a secret-ballot election to determine whether workers favored unionization" [emphasis added]. Moreover, supporters of the EFCA say employers often use to delay, obstruct and intimidate workers in an effort to resist organizing efforts. Rather than explain these concerns of EFCA supporters in any meaningful way, Easton wrote of EFCA supporters only, "Union leader [sic] say the current secret-ballot system unfairly favors management and is a factor behind their plummeting membership ranks." The House Committee on Education and Labor describes the claim that "The Employee Free Choice Act abolishes the National Labor Relations Board's 'secret ballot' election process" as a "myth" and states on its website: "The Employee Free Choice Act would make that choice -- whether to use the NLRB election process or majority sign-up -- a majority choice of the employees, not the employer." (emphasis added to emphasis in the original) Which is, of course, one of the reasons employers hate the Free Choice Act: the "free choice" involved would become the workers' instead of theirs. That a law firm would deliberately misstate (I'm being kind) the meaning of a law tells me quite clearly that nothing else they have to say can be trusted. Exit first link. The second link goes to a long piece by an ex-labor organizer named Steve Early at a Labor blog called Talking Union, which pmoser thinks I should read for "MEANINGFUL and COHERENT support of EFCA" since I obviously didn't offer any. It's an excellent post all the way around so I appreciate his leaving the link and I second his suggestion that y'all read it. The first half of "EFCA, The Economy, Obama and Labor?" is a clearly written and fairly complete summary of the history of EFCA - the whos, whys, and wherefores. And for my money he goes way too easy on the Democrats whose support has by and large been little more than chin music. Now that it's actually going to come up, we'll see who means it and who don't. But Early is not enchanted with the unions, either, who seem in some cases to have put more lip into their support than service. Undertaken at the urging of CWA President Larry Cohen and others on the federation’s executive council, the AFL-CIO resolved to get ten percent of all union members signed up on pledge cards demanding that Congress and the White House take action on EFCA. To reach this proclaimed goal of one million petitioners, labor’s campaign had both an internal and external component: “Every national union, state federation, central labor council trade department, constituency group, local union and allied organization commits to massive membership mobilization about the assault on collective bargaining, the middle class, and our unions…We must educate, mobilize, and enlist our members in the movement to pass the Employee Free Choice Act. Organized labor is very adept at “resolutionary activity” like this, which papers over an inevitable gap between rhetoric and reality due to lack of follow-up. In the case of the “million member” mobilization, one reality noticeable so far has been rather light campaigning by several major unions rooted in the public sector who won’t benefit much, if at all, from private sector labor law changes. EFCA is also largely irrelevant to current strategies for regaining “union market share” in construction (although a few building trades unions have worked hard for it).
“Every segment of the labor movement also commits to engage and cultivate more allies, religious leaders, civil rights leaders, academics, think tanks, and other opinion leaders to speak out about the importance of restoring the freedom to form unions to build a just society.” (13)
I suspect that's likely true enough. Those who've been reading this site and/or my others over the past few years know that I've made no secret of my criticism of union selfishness and territoriality, the recent fight between Andy Stern's SEIU and Sal Rosselli of United Health Care Workers West (UHCWW) being but the latest example, or of the return of the corruption that tarnished Labor's image for 40 years and has just now begun to wear off. I criticized the AFL-CIO's blindness and even selfishness in ignoring the needs of smaller, newer unions by entrenched older and more powerful unions, a selfishness that eventually led to SEIU and others breaking away last year. So it doesn't surprise me and it won't surprise long-time readers that union interests aren't monolithic and are sometimes myopic.
But what's that got to do with EFCA? Simple. As a management rep, pmoser would prefer that I encourage any split that may exist in Labor's interior. If we start fighting amongst ourselves, accusing each other of insufficient EFCA sincerity, we're that much more likely to weaken when the push comes to pass it. You know, the old divide-and-conquer strategy.
The problem with that is, as Early says in the second half, even the Labor leaders and unions not all that consumed with the importance of passing EFCA are pretty clear that something like it needs to be done and that its passage may mean the survival of organized labor.
So what exactly is pmoser's problem? What does any of this, true as it might be, have to do with what I said about union v non-union shops and/or EFCA? How does any of this prove or even suggest how far "off base" I am?
The simple answer is, name-calling aside, it doesn't.
Against my better judgment, I feel compelled to post. If this post is too long I'll break it up into two separate ones. I don't care about the lies, spin, and personal attacks against me, but I do think that it's a dangerous myth you're perpetrating about EFCA somehowing giving employees a "choice" as to whether or not to have an election. That assertion is absolutely false. I know you're hardly alone in making it, but in my experience those who make that claim either (a) are unaware of what EFCA actually says, or at least unaware of what its language would mean in light of how union organizing actually works, or (b) have a pro-EFCA agenda and know full-well that they're "spinning" things quite a bit. The reality is that if EFCA passes there technically COULD be an election, but only if a union files a representation petition with the NLRB supported by more than 30% of the cards and less than 50% of the cards. This situation will never happen as a practical matter (I'll explain below) and in any event even in that scenario it would be the union and not the employees who would have the so-called "choice" to file a peittion with less than 50% support just to have an election. Let's take it point-by-point, and I'll be curious to see where you disagree. (1) Under EFCA's current language (H.800) the NLRB would have no discretion to hold an election if a union files a petition with more than 50% of the cards signed. With more than 50% of the cards signed, there's no "choice" for anyone. EFCA would expressly PROHIBIT any election and says that the NLRB must certify the union on the basis of the cards alone in that scenario. The law was written this way for an obvious reason, but let's stick to the point-by-point approach. I'll assume you have no disagreement with what I'm saying in this point (if you do, go read the bill); (2) current NLRB law which is unaffected by EFCA requires a union to have at least 30% of the cards signed in order to file a petition for election. So under EFCA, the only way an election can occur is if a petition is filed that is only supported by cards within the 30% to 50% window. I'll assume you have no disagreement here. (3) current NLRB law unaffected by EFCA grants a one year "shelf life" on authorization cards. In other words, a union has up to a year to try and get enough cards signed. I'll assume you have no disagreement here. (4) unions don't like to lose elections for several reasons. Not only is it a black mark on their record that future employers can use against them in a campaign, but when a union loses an election the target employer, by law, is free from any other election being held for a period of one year. In fact, if a union knows it is going to lose an election it will not proceed but will either file a blocking charge with the NLRB or will simply withdraw their petition. Note: in part due to these reasons the "winning percentage" for unions in elections is somewhat inflated. The most recent NLRB statistics show unions winning 60% of elections (a number that's been on the rise for years). And an aggressive talented union like the SEIU does a lot better than that. But my point is simply that unions understandably don't like to lose elections, and that currently even when unions allow an election to go forward they still lose 40% of the time. You may disagree with some of my text in this point, but I'll assume not the previous sentence (if you do disagree, I can point you to the NLRB data). (5) In addition to not liking to lose elections, unions prefer card-check organizing. This is, obviously, the whole point of EFCA after all. Ironically, even today the majority of new union members come via card-check, not elections. This happens due to state laws that allow for card-check in the public sector, or card-check agreements reached with individual employers, or simply the union winning its "corporate campaign" to force an employer to forego an election. My point is that unions would much prefer to avoid the time, expense and risk of an election if they have the option of card-check recognition instead. This just makes good business sense. My favorite quote from a union official on this point came from Michael Fishman, president of SEIU local 32BJ, in the Wall Street Journal: "We don't do elections." If you disagree with this point and think that unions prefer elections or are indifferent to card-check vs. eletion . . . well, let's just say you're kidding yourself. Do a little research. (6) Under the current election-based system, unions will not file a petition unless they have well over 50% of the card signed. This point is key to understanding why there will be no elections under EFCA. Unions typically don't file a petition until they have 60% to 75% of the cards signed, because they know their support will erode somewhat prior to the election and, in any event, you can't win the election if you have less than 50% support. In short, if you've been trying to get cards signed for a year and couldn't get at least 50%, then you are not going to win that election and so why waste your time and put yourself at legal disadvantage by going forward with a loser election? It just doesn't happen. If you disagree with me on this point see footnotes 11-13 in the following link (i.e., quoting organizing policies from the SEIU, Teamsters and Nurses Union which say that they won't file petitions unless they have 60-75% card support). http://www.heritage.org/Research/labor/bg2175.cfm#_ftn19. Yes, I know it's a link to the Heritage Foundation, but don't let that distract you from the valid point and footnote citations. The point is that for obvious reasons unions do not file a peition unless they have more than 50% of the cards. Don't beleive me? Ask around. It's not a secret. (7) typical authorization card language does not give the signing employee any right or choice to have an election. To the contrary, I've seen SEIU cards that expressly tell it like it is, by informing the signing employee that the union may use the card to achieve recognition without any election at all. Not all unions are as up-front about this reality. But the point is that when an employee signs a card he puts any "choice" about an election in the hands of the union. CONCLUSION: EFCA would give unions the absolute ability to avoid elections, and all evidence, experience and common sense (and current union policy) says they'll take advantage of the card-check option every time. To say otherwise is, I guess, to say that once EFCA is passed unions will inexplicably start, for the first time, filing petitions with less then 50% support. Let's be honest. That won't happen. The whole point of EFCA is to AVOID elections. So, to finish where I started, it's pure misleading spin to charaterize EFCA as merely shifting the right of having an election from employers to unions. I, frankly, don't know how anyone can make that claim with a straight face (short of naivety). Although there is technically a sceanrio where an election might occur, as a PRACTCAL matter elections will absolutely be history.
Posted by: pmoser | January 01, 2009 at 09:26 AM