Labour

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Let’s Get Real About EFCA

The United States Senate is poised to vote on S. 1041 “The Employee Free Choice Act” sometime in the next few days. Proving its bipartisan popularity, the bill cleared the House of Representatives with a large margin. Minority Whip Roy Blunt, in a pen and pad session with political reporters, warned that it would not be a free vote, and that there would be consequences for any Republican who broke ranks. Senate Minority Leader Mitch McConnell and Minority Whip are now making similar threats, but the bill faces an uphill battle in the Senate. The Republican opposition to this bill is ostensibly about preserving the integrity of elections, but in reality, it’s about continuing to represent the interests of their corporate donors.

To review, the most controversial part of the bill re-introduces a “card-check” procedure. What this would do is make it easier for employees seeking to form a union to get straight to the certification process. If an employee signs a document indicating that he is in favor of a union being formed, it’s counted as a vote for the union. If a majority of the employees sign, then the vote is considered to have occurred, and the union proceeds straight to the National Labor Relations Board for certification. Other provisions of the bill provide for increased penalties for employers who violate labor negotiation laws and for making mediation and arbitration easier to reach for first time contracts.

The Republicans in the House and the Senate have few problems with the latter two provisions, but the first is the one that has them rallying the troops. Card-checks make union organizing much easier. Currently, the law makes it all but impossible for employees to form a union. Employers are able to harass and punish union organizers, prohibit them from any on-site organizing activity, subject workers to incredible amounts of compulsory anti-union propaganda during work hours and fire any employee who seems to remotely think that belonging to a union might possibly be something he’d consider considering. In addition to on-site employer harassment, employees are further disadvantaged by the fact that the only times that they can meet to talk about organizing are after work and off-site. Apparently, a group of people who’ve just worked a twelve hour shift in a slaughterhouse are expected to get together for chai lattes at the local Starbucks and talk about their options and 401(k)’s.

Republicans claim that they prefer the status quo in that it preserves a secret ballot process. After all, one of the hallmarks of a democracy is that no one knows how you voted. This doesn’t quite work, though, for two primary reasons. First of all, a place of work is not identical to a society or government. Short of being tried for treason and expelled, there is no real way for the government to punish someone for politicking. It’s a lot harder to legally find someone a traitor than it is to fire him because you don’t like his thoughts. Secondly, management already works by a card-check system, and Republicans consider that to be a hallmark of corporate efficiency and a strength of the American economic system. The difference is that in the corporate world, they’re called “proxies.” Shareholders are constantly signing over their voting authority to other shareholders to create large coalitions and get things done. What’s good for the goose isn’t good for the gander?

Assuming that we grant their argument is in good faith, however, there are other objections that come into play. Not all votes are best left in the dark and protected by secrecy. Perhaps the legislators in question would prefer it this way, but would anyone be happy if the United States House of Representatives and the United States Senate were able to conduct their votes anonymously? Would any shareholder in any corporation feel comfortable with letting board members vote anonymously? When it comes to dictating policy for the country and for the company, we demand accountability and transparency from the voters. Why shouldn’t workers be able to demand the same accountability?

In closing, it’s worth investigating a thought experiment. Let us imagine that in the 2004 election, the Democratic party were able to take all the undecided voters in the country and get to them at their place of work. Let us further imagine that all of them were forced to listen to Democratic negative ads on the Muzak and be subjected to daily viewings of Michael Moore’s Fahrenheit 9/11. Furthermore, the Democratic Party hired public relations firms and strategic consultants to figure out how to bully those undecideds who hadn’t been brainwashed into voting Democratic. The Republicans would only be able to approach these voters at home, after hours and on their own efforts. Any attempt to talk to them at work would result in firing and excessive hounding. Would any Republican find this fair? It’s time to put the pretense behind us and pass the Employee Free Choice Act.

In the leadup to yesterday's vote on The Employee Free Choice Act, America was able to see first hand the resonance of of the role of organised labour in the modern economy. While the regular partisans of opinion journalism lined up behind predictable lines, straight news coverage of this bill was almost non-existent. In fact, reading coverage of the bill could pretty much reveal the editorial views of the bureau in question. To be as clear as possible, here is what the bill does:

• reinstates a "card check" procedure for voting on a union,
• provides for third-party mediation and arbitration for first time union contracts and
• makes the penalties for violations for NLRB sufficiently punitive to deter violations

As always, there are the real reasons that people oppose and support this bill, and the stated. The right wing, when they are being honest, will admit that the problem with this bill is primarily that it makes it easier for unions to come into being, expand and organise, and that they believe unions to be an objectively bad thing. Such is the position of Republicans like Phil Kerpen, Policy Director at Americans for Prosperity. Numerous Republicans, speaking off the record, have confirmed that this is their primary objection to the legislation. Similarly, no Democrat will deny that passing this legislation will ensure the gratitude of organised labour, a vital part of the Democratic coalition, and a partner whose numbers have been in sharp decline over the last several years. Passing this legislation will ensure the gratitude of blue collar workers, a swing demographic in this country and one whose defection relegated the Democrats vulnerable for years, for election cycles to come. These are the real reasons why partisans on both sides like the bill.

What is publicly argued, though, is quite different. Even Kerpen, normally a blunt and honest proponent of his beliefs, is unable to refrain from diversionary argument. In his 23 February, 2007, NRO column, Kerpen writes that his primary concern is that the legislation would demolish secret ballot processes and force workers into coercion and intimidation scenarios where burly thugs terrorise them at their homes to vote along with the boss. For any of us familiar with American history, it's easy to imagine. Visions of The Union League Club's machine politics come to mind.

It is, unfortunately for Kerpen, in no way based in fact, but let us ignore that for a minute. Prominently missing from his analysis of the situation is the fact that this very system of public voting already exists in the corporate world. Currently, shareholders are able to tracked down and pressured into signing proxies for voting by larger shareholders. In fact, it is quite probable that Kerpen would come out strongly in favour of this, as it allows for smaller stakeholders to easily communicate and entrust their staes to larger, more experienced stakeholders with more to lose. He would also probably laud it as a means to streamline internal communications and allows the company to move more quickly and responsively. Of course, he could always be consistent by next authoring an op-ed arguing that proxies disempower smaller stakeholders by allowing larger stakeholders to bully them and make their voices meaningless in a plurality and majority rule environment, but that is not likely.

As former Secretary of Labour Robert Reich argues, the workplace is not analogous to a democracy. In a democracy and government, only under very rare conditions can participation be ceased. The workplace, however, is an entirely different circumstance. The simple fact that people can quit or be fired changes the whole set of power relationships, and requires that people be given a straight up or down vote.