Why We Need Card Check and Labor Law Reform

I haven't weighed in all the much on the Employee Free Choice Act, in large part, because I often like to keep a little distance between work and blogging.  But recent events make me feel like sharing a little on this issue.

One of my clients in the building trades recently undertook an extremely difficult campaign to organize a non-union contractor.  The odds against them were profound -- the company is located in a so-called right to work state (and one of the most anti-union in the country), the workforce at the company was almost exclusively Latino and primarily Spanish speaking, and it occurred in the midst of a pretty severe downturn in the construction business.  Nevertheless, through exceptionally hard and sensitive work, the union got over 70% of the proposed bargaining unit to sign authorization cards to have the union represent them -- the bargaining unit in question consisted of over 100 craftsmen -- how many were here legally I can't say. 

Under the Employee Free Choice Act, this would have been sufficient to demand that the employer recognize the union as the bargaining representative of this craft group.  Instead, however, under current law, the union had to file a petition for election with the National Labor Relations Board.  And here is where the fun starts under labor law.

Almost immediately upon receiving news of the election, the employer began a campaign of intimidation, both subtle and not so subtle.  Suddenly the company owner began handing out paychecks in person on the job sites.  Just as suddenly work began to dry up, allegedly requiring layoffs.  Then the firings began.  There was one guy who we claimed should be on the list of eligible voters for the election.  At first the company objected, claiming he was a supervisor.  Shortly thereafter, they decided to agree with our position and put the employee on the list.  The  next day they fired him.

A flood of propaganda issued from the employer indicating that if the employees voted for the union, there might not be work for them or that their working conditions might actually worsen.  Unceasing claims that jobs might disappear, reinforced by firings and mass layoffs ensued.  By the time of the election on Friday, the active work force had been cut in half, and those that remained were thoroughly cowed by this show of employer power.  The union lost the vote by a two to one margin.

This is everyday bullshit in the world of organized labor.  Immoral employers and their management lawyers -- really the scummiest group in the entirety of the bar -- routinely violate the law and intimidate employees in order to maintain a "union free environment."  When they are taken to task for illegally firing workers in an organizing campaign, the remedies take years to occur, and the penalty is to simply pay the employee back pay for what he would have made less the money earned in any subsequent employment.  There is no punitive or exemplary damages, no fine, and very little cost to the employer.  

I laugh at the notion that secret ballot elections are needed to keep unions from intimidating employees.  In the real world this just doesn't happen -- especially in a right to work state where no one has to join a union or pay dues even where a union successfully obtains a contract.  Employers, on the other hand, manipulate the secret ballot elections with grotesque acts of intimidation, a fact that seems to trouble all too few people.

I know that people on the right don't care.  Anything that stops unions is a good in their eyes.  My target in writing this is some of the commenters I see at places like Ezra's or Matt's where otherwise "liberal" folks claim not to understand why these secret ballot votes aren't a good thing.  And the answer is because America's employers are all too often lawless motherfuckers, enabled by a management bar that cares nothing about its ethical obligations.  Employers have such an inherent ability to intimidate that they should have no say whatsoever in the choice of employees to unionize or not.  They should be barred from electioneering, from holding captive audience meetings, and in any way trying to influence this decision.  And the law needs to be changed to make firing union supporters an expensive and perilous move.  Only when this happens will unions have anything like a fair chance to organize workers who desperately need their help.        

Comments

[rk]

Thanks for posting this - I've found making this argument difficult recently simply because I didn't know enough. This is despite the fact that my default positions is unions unions unions.

But can I just say that organized labor is not making this point well at all. Even after some cursory digging trying to find the argument, all I could find a few months ago was a video about why unions are important, and everyone should be able to vote to be in one. I was emailed by a friend whose employer sat them down to explain why EFCA was awful - and I bullshitted enough to give her some ammunition against it, but really honestly came up dry. The story you told is not being told nearly well enough. If someone such as myself has had trouble, I can't imagine what truly undecided folks are doing.

More!!

[Sir Charles]

rk,

Thanks. I will try and post a bit more about why proceedings before the National Labor Relations Board are frustrating often to the point of futility. Just for example, one of the first briefs I ever wrote to a U.S. Court of Appeals was to reinstate some workers who had been fired for being union supporters -- we won and the employees were ordered reinstated and given back pay some seven years after the firing took place. Imagine the impact on the work force of those firings and contrast it with the remedy, where reinstatement is ordered long after most employees have already left the employer in question. The state of the law in such instances makes the right to join and support a union completely illusory.

[has_te]

Thanks , Sir C.
An issue to which I have paid too little attention, the tits v. the tats.
Which really is all about intimidation. So what you say makes sense.

Informing thuggish employers of a secret ballot is actually to alert them to an hiatus in process.
Time for dirty works in which they can impose their very real intimidatory powers on labor...
the vulnerable individuals that work.

YOUR job is to rework the framing of the phrase, Secret Ballot which is a thing..
What's not to like? That essential & bulwark of free and democratic societies.

Framing, Sir C.
E.g.The whole forced birth issue revolves about & upon it.
[Go get Lakoff, he'd help, I bet.]

[J.]

Pretty much. The board cert process and ULP remedies are such a sad joke, although hopefully O's appointees, who are pretty damn good, much better than Clinton's, will change that. More than card certification and better damages, though, I'm most excited about the mediation provision. I've got a case where the employer has been dicking around with CBA negotiations for two years.

Sadly, O seems to be selling us out on the Employee Free Choice Act in favor of other agenda items.

[Sir Charles]

has te,

I am generally leery of "framing" arguments, but in this case I think you are exactly right. We've lost the battle from the start and didn't seem to explain why card check was necessary.

J.,

Keep up the good fight. A couple of Clinton's Board appointees were quite good -- Wilma Liebman and Sarah Fox -- but having to deal with a Republican Congress really put him at a huge disadvantage from which O. does not suffer.

I agree that interest arbitration may even be more important than card check -- having gotten dicked around until impasse on a couple of occassions after winning elections, I know just how you feel.

In the end, however, we somehow have to reaculturate the working class to striking. It's hard, but dammit, it must have been pretty hard in the 1930s too, and yet, that's how we organized entire industries -- not with elections but fucking sit-down strikes. (I do get nostalgic sometimes for times I've never known.)

[Corvus9]

I think part of the problem for labor making the case for card check is that it is really hard to argue persuasively that your opponent is operating in bad faith. Trying to make the case that employers are lying thugs, and thus we need protection from them, is not a very easy sell in the chummy world of politics. That it's the truth doesn't enter into it. That sucks, but really the only way to counter the Employers' bullshit is to treat it as if it is in good faith and show the holes in the logic, which is nearly impossible to do when you are left fuming at the sheer gall on display.

But you know what, I am getting really tired of people ragging on Obama because he isn't addressing their pet issue at the moment. The economy is in the shitter, we are in two intractable, hopeless wars that need to be resolved, the planet's warming is heading us for environmental degradation, which we refuse to do anything about because our energy system is dependent upon it, and your health care system has needed reform for decades. His political capital is focused right where it has to be right now.

Look, getting the EFCA signed into law would probably effect me, personally, more than any other issue in the docket right now, but I can't really blame Obama for not pursuing it at the moment, because there is really no way to win it right now. The votes are just not there in the Senate. Besides, there really isn't much point to greater unionization in the immediate. Unions are bargaining away pay right now, not getting more of it. Until we get more non-shitty Democrats in the Senate, the economy improves, or the Administration has the political capital available to devote to this issue, it's just not going to happen. That sucks, but it isn't O's fault.

[Dan]

Let's also remember that the EFCA does not eliminate the right to a secret ballot. If the employees CHOOSE an election, they get one.

All it really does is move the choice of election vs card check from the employers to the employees.

[Sir Charles]

corvus,

I wasn't denouncing Obama on this. I tend to agree that there isn't much point in using political capital until we get at least some movement in the Senate. If we get to the point where a handful of votes would make a difference I would expect the White House to start pushing then. Right now we just don't seem that close.

Dan,

That goes back to the framing issue that both rk and has te mentioned. Labor has not done a great job with this and the media have been terrible.