Thursday, December 18, 2008

Sharpton Comes Out Against EFCA

Sharpton Somewhat surprising (though not surprising that The National Review picked it up):

This is a transcript [from] the Al Sharpton Radio program earlier [yesterday].

Al Sharpton: Yeah, well, what I don’t understand about it which is why I’m in the campaign is why wouldn’t those of us who support workers being protected, why would we not want their privacy protected.  I mean why would we want them opened up to this kind of possible coercion?

Sylvester [Smith]: Well, and that’s the 50 million dollar question, Rev. Sharpton, it’s a question we’ve been trying to answer but we think that the heart of this issue is not about protecting workers, the heart of this issue is about the decline of union membership that’s been going on in this country for the past thirty years.  The unions at this point are in a death spiral and much of it’s tied to the exportation of production jobs from this country to other countries and the unions…

Al Sharpton: Yeah, the outsourcing, well I’m all for, and as well for those who don’t believe in the right to organizing, clearly I’m for any legislation to give any state the right to organize, but I’m talking about specifically where workers are not protected from coercion, in terms of these card-checks that you talk about, and as arbitration because explain, Charlie King, to me the whole question that you raised, if you have a federal arbitrator who says that this is the deal, even when the union only established out of card-check, is the deal for two years, and there’s nothing you can do about it, I mean, a lot of the business that we afford for the African American community to get contracts and sub contracts and all.  They could face some very serious problems here.

Sharpton appears to worry that the EFCA could circumscribe employee's privacy rights and also first contracts being hoisted upon minority-owned businesses by outside arbitrators.

There is a lot to say in response and I hope that Rev. Sharpton will listen to the other side's explanation about where the real coercion and lack of privacy takes place - in the workplace from the employer. I also hope someone explains to him how interest arbitration works and that arbitrators do not just force employers to agree to onerous collective bargaining agreements. Interest arbitration takes materials and evidence from both sides and then comes up with a compromise that both sides can live with.

My fear is that if Rev. Sharpton is confused about the benefits of EFCA, then unions and their allies have some hard work ahead explaining to legislators - especially Democratic ones - how this law will work and what abuses it will prevent.

Hat Tip:  Justin Keith



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Workplace Prof Blog ran an interesting December 18, 2008 story where they discuss Rev. Sharpen coming out against the EFCA, available here. Thank G-d Rev. Al was never elected to political office. In my view, it is unfortunate that some [Read More]

Tracked on Dec 19, 2008 9:05:31 PM


So Rev. Al comes out against the fraudulently-misnomered EFCA, and you presume that he hasn't already "listen[ed] to the other side's explanation about where the real coercion and lack of privacy takes place" and rejected it.

Perhaps he's even considered that the notion of "how interest arbitration works" insofar as "com[ing] up with a compromise that both sides can live with" most often includes a forced-unionism clause which ignores another side --- i.e., there's more than just two ("both") --- that of the nonunion employees stuck with unwanted union representation.

Presuming that someone who disagrees with you hasn't "listen[ed] to the other side" displays an amazing level of arrogance, Paul.

Posted by: James Young | Dec 18, 2008 10:09:49 AM

Since James didn't see fit to mention it, I will note that he is an attorney with the anti-union National Right to Work Foundation (speaking of fraudulent misnomers), a fact that some readers might consider relevant in assessing his views on EFCA (just as I'd expect people to consider my own affiliation with the union movement in assessing my views on the subject, which is why I always make sure to disclose that fact when opining on such matters).

Posted by: eric | Dec 18, 2008 6:51:40 PM

With the UAW in the news and stories about SEIU's alleged connection to the Blagojevich scandal, I have been getting a lot of questions about EFCA from my friends who are not labor lawyers. When I explain the provisions of EFCA to them, I consistently get stunned reactions. To folks outside of the labor world, it is bizarre and un-American to deny people the right to vote in a secret-ballot election. I have not yet encountered a single person (aside from my friends who work on behalf of organized labor) who thinks interest arbitration is anything but a terrible idea in times like these (or anytime, really).

Posted by: JK | Dec 19, 2008 11:08:15 AM

Not sure if my employment status is a mystery to anyone here, Eric, but if it makes feel better to mention it, yes, I am an attorney with the National Right to Work Legal Defense Foundation, and have been for more than nineteen years. And the Foundation is only "anti-union" if you consider coercion, fraud, special privileges, and other thuggish tactics to be "pro-union." I'll just assume you meant "anti-union coercion." But then again, that wouldn't be consistent with support for EFCA.

Posted by: James Young | Dec 19, 2008 11:08:16 AM

Hold the phone Eric. I generally disagree with Mr. Young on every single issue in the spectrum. I also have participated in lively debate on this web page.

He has always been very open about his views, as well as his cause. I think your post is unfair as it seeks to undermine his position based on his association - which I will agree is anti-Union, but given Mr. Young's record of openness on his opinions, I feel it is a low blow to knock him down without attacking the substance of his position.

Posted by: Per son | Dec 19, 2008 11:08:17 AM

I'll try to keep my arrogance to an acceptable level in giving my best argument on why I think passage of the EFCA makes sense:

The crux of the issue is whether employees are better off with secret ballots in the current union organizational environment or would be better served with card check recognition, which would require 50% plus 1 employees in the proposed bargaining unit to sign authorization cards to have the union represent them.

Couple of points. First, I think there is not a good analogy here between the civil rights movement of the 60’s and secret ballot elections here. In the 60’s and before, black citizens were being disenfranchised from the process completely. Not so here. Instead, the same majority-rule principles are being adhered to, albeit by an alternative route of certification. It is important that you and others understand that card-check recognition is already permitted under the NLRA, just not required. Also, that many states have such mandatory card check laws for public employees.

Second, privacy of workers is indeed an important consideration, but it is all relative. Many employees have little privacy rights in the private-sector workplace as it is right now. For instance, employees might be intimidated or otherwise pressured to support the employer (captive audience meetings are a widely used device) during the organizational campaign. The union, on the other hand, has no access to employees at the workplace and is at a distinct disadvantage in explaining the potential benefits of unionization. So employees might be actually “casting” a more free ballot in discussing unionization with union supporters and use of the authorization cards than through “secret” elections.

One last point (sorry, all good things come in threes): if the union supporters force, intimidate, or otherwise interfere with employees ability to make a free choice about whether they want to be represented by a union,the individual is free to file unfair labor practice charges against the union with the NLRB.

I hope this provides some additional context for my initial thoughts on Sharpton’s comments.

Posted by: Paul | Dec 19, 2008 12:41:58 PM

Actually, I consider "coercion, fraud, special privileges, and other thuggish tactics" to be characteristic of how management responds when workers try to exercise their legal right to organize. Which is precisely why I support EFCA. As Paul notes, if there were any evidence of union coercion in a card-check campaign, that would be the proper subject of a ULP charge. Absent any such evidence, it's just scare-mongering.

JK is correct in observing that people outside the labor world are perplexed by the notion of doing away with secret ballots. They might understand better if they understood how little representation elections have in common with elections for public office -- in which neither candidate has the exclusive right to compel voters to sit through one-sided presentations, and neither candidate has direct control over voters' livelihoods. There were secret ballot elections in the Soviet Union; that didn't make them democratic.

Posted by: eric | Dec 19, 2008 2:21:40 PM

I do have a question, Paul: "if the union supporters force, intimidate, or otherwise interfere with employees['] ability to make a free choice about whether they want to be represented by a union," would you support an anti-Gissel order under similar standards applicable to a Gissel bargaining order, i.e., a decertification order? It seems to me that it would have to follow if your standard is an objective one.

Be careful what you wish for.

Posted by: James Young | Dec 19, 2008 8:33:36 PM

Never let it be said that I'm ungrateful; thanks, "Per Son."

And it's not your argument or even your faith in it which is arrogant, Paul. It's the implication in your post-in-chief that Sharpton hasn't considered the argument and rejected it (as I have). And the issue isn't (or shouldn't be) "whether employees are better off" or "would be better served." The issue is (or should be) a fair process. Is it "fair" (yeah, I know; I hate that word, too) to create a situation where employees may well be coerced or lied to in order to secure a signature on a card (told, for instance, as a teenager in a Right to Work state was to secure a signature on a dues checkoff authorization was, that it was just to get more information on the union, sticking her with a year of dues payments, absent a ULP charge), without even the opportunity to hear the other side? The underlying presumption of EFCA's proponents is that all employer speech result in employees being, to use your words, Paul, "intimidated or otherwise pressured."

EFCA is a slippery slope which all too frequently represents the anti-freedom agenda of the Left. Free employer speech results in union losses in elections; therefore, create a process which avoids that inconvenience. Other manifestations of this philosophy is campaign finance "reform" and the so-called "fairness doctrine." And I will confess a bias here: I am immediately suspicious of anyone who doesn't like free speech.

Posted by: James Young | Dec 19, 2008 8:34:49 PM


SInce you are against those who dislike free speech, I must assume you are against the NLRB decision that allows employers to ban union related speech in emails, but non-work related things like scouts or local Kiwanis club emails are fine. View point discrimination at its purest.

Posted by: Per Son | Dec 20, 2008 7:18:52 AM

Oh, c'mon, "Per Son"! That's too easy.

Last time I checked, people (yes, employers are people, too) are entitled to control their own property. Therefore, "free speech" --- by which I mean speech uncontrolled by the government; perhaps I should have been more precise --- the First Amendment is not implicated in an employer's decision to do as you describe. Of course, campaign finance "reform" and the so-called "fairness doctrine," are GOVERNMENT limitations on free speech.

Or should I read the implications of your suggestion as a hostility to the concept of private property? ;-)

Posted by: James Young | Dec 21, 2008 7:06:10 PM

Mr. Young:

You fell into my trap - mwa ha ha. I am all about the First Amendment, but we all know about reasonable limitations and clashes of interest. For example, discriminatory speech can and often does lead to liability under Title VII. Unions have free speech rights, but they are still liable under state laws for picketing in many instances, and secondary boycotts - again free speech, are not permitted under the NLRA. So the NLRA seems to forbid a lot of otherwise free speech - which many can say hurts unions and employer's so-called free speech rights. So, until there is no NLRA, such viewpoint discrimination should lead to a finding of a ULP.

I should add that the First Amendment does apply to private property if we are talking about the judicial or administrative enforcement of such rights (go back to first year property and Shelley v. Kramer).

Posted by: Per Son | Dec 22, 2008 7:58:08 AM

I always appreciate a well-laid trap.

But isn't Shelley v. Kramer a "constitutional dead letter."

Posted by: James Young | Dec 22, 2008 9:00:25 PM

I am not aware of that. When did that happen?

Posted by: Per Son | Dec 23, 2008 10:43:15 AM

I think Judge Bork said it, "Per Son."

Posted by: James Young | Dec 26, 2008 4:40:14 PM

Ahh, must be an inkblot.

Posted by: Per Son | Dec 28, 2008 5:25:31 PM

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