Wednesday, May 21, 2008

Eisenbrey's Take on Lofaso's "September Massacre"

Eisenbreyjpg Ross Eisenbrey (Economic Policy Institute) has posted an essay on the ACS Blog entitled "The Weakening of a National Rights Law," which discusses the Anne Marie Lofaso paper we posted on yesterday.  Eisenbrey largely agrees with Lofaso's analysis the NLRB's recent "massacre" and adds these thoughts:

Lofaso sees Dana as a symbol of the Bush Board’s “vigorous resistance to union organizing” and potentially, the dawn of “a new era of government repression of unionism.”  This alarming view might seem extreme, but the recent history of Australia shows that a hostile government can swiftly turn a nation’s laws from encouraging union activity to criminalizing it.

What Lofaso fails to mention is that the Bush Board is well aware that its election process is totally broken and has become a snare for unions and workers who want to organize.  Employers draw out the Board’s election process to enable a campaign of terror against employees with union sympathies, subjecting them to one-on-one meetings with supervisors and captive audience speeches condemning unions and threatening terrible consequences in the event of a union victory, using local businesses and community leaders to attack the union, and firing or otherwise punishing union supporters. Employers know that there are no effective remedies for their illegal actions; there are no fines for violating the right to join a union. When the Bush Board hinders voluntary recognition it does so because most successful union organizing in recent years has been done outside of the Board’s election process.

Dana is one more compelling reason for Congress to pass the Employee Free Choice Act, which would give employees the right to demand recognition for their union upon presentation of a valid majority of signed authorization cards.  The choice of voluntary recognition or an election would no longer belong to the employer, but would be for a majority of employees to decide.  The Act would also establish monetary fines for violations of the right to join a union and give unions the right to have an arbitrator decide the terms of a first contract if the union and employer can’t reach agreement on their own.

Anne Marie Lofaso’s paper on the September Massacre makes it clear, however, that the Employee Free Choice Act, however essential, is only a start down the road to restoring union rights, union strength, and the bargaining power of American workers.  Decades of bad law will have to overturned if we are to restore the balance of power between workers and corporations that the New Deal envisioned.

I suspect that we'll have many more of these interesting conversation as the 2008 election nears and depending on the outcome, even more afterward.


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Undoubtedly. Interesting the timing of the article, the response. Much like the academy's petition for oral argument followed by the picketing at NLRB HQ. Surely can't be funded, coordinated, and orchestrated ?

Posted by: JR | May 22, 2008 3:46:39 AM

The only "campaign of terror" I am aware of is the one that will be created by the Employee Free Choice Act, which will be implemented by Unions seeking to cajole or crush employees into signing Union cards. The legislation, as it is currently drafted is simply inadequate to ensure that workers that do not want to belong to a Union are not intimidated into signing a card (believe it or not there are workers that would prefer to work in a Union-free environment).

Further, since when are free and fair elections supervised by the Federal Government considered terrorism? And how is taking away a worker's right to vote actually giving him or her more rights? Sounds like Orwellian doublespeak to me, as does the name of the Act itself.

Posted by: Hans Nilges | May 22, 2008 4:46:29 AM

Aside from the eruptions of Old Faithful and the Sun rising in the East, is there anything more reliable phenomenon than JR popping up to impugn somebody's motives on scant evidence? And, really, what's the charge here -- that the fearsome ACS and EPI have conspired to hobble the nation's employers with the highly coordinated pincher movement of two academic essays? The more parsimonious (i.e., non-insane) explanation that this is one academic responding to the ideas of another, as is occassionally known to happen in the world of think tanks and academia.

Posted by: jay | May 22, 2008 10:49:00 AM

One presumes, jay, that you have not offered, or at least will not hereafter offer, complaints about a "conservative echo chamber" on public policy issues, given your apparent endorsement of a "liberal echo chamber."

Imitation is the sincerest form of flattery.

Posted by: James Young | May 22, 2008 12:24:25 PM

James, you have my word that I will not object to conservatives agreeing with one another.

Whew! I'm glad we were able to lay that burning issue to rest. Or do we need to seal the deal with some kind of secret handshake?

Posted by: jay | May 22, 2008 12:48:31 PM

Oh, James, now that I've given you permission to agree with other conservatives, do you agree with JR's evidence-free accusation of some kind of malign "fund[ing], coordinat[ing], and orchestrat[ing]" arrangement between Professor Lofaso and Mr. Eisenbrey?

Posted by: jay | May 22, 2008 1:02:54 PM


Here's something you can verify empirically. First, find the number of NLRB decisions finding that a union violated 8b1A by coercing or intimidating an employee into signing an authorization card. Second, find the number of NLRB decisions finding that an employer violated 8a1 by threatening or coercing an employee for supporting unionization. Third, compare those two figures.

As long as I'm on a roll for promising things, here's my promise to you: I will eat my hat if the latter figure is not serveral orders of magnitude larger than the former. Heck, I'm feeling generous, I'll even let you narrow the count to cases decided by the Battista board.

And once we've settled that score (with my hat still sitting comfortably atop my head), you can tell us again how you're only aware of prevalence of intimidation by unions, but not by employers.

Posted by: jay | May 22, 2008 1:46:14 PM


First, you are probably correct that unions are more litigious than employers. They have better things to do - like making money, which in turn creates jobs. And individual employees who do not want to participate in unions (who represent the vast majority of the American workforce), but are bullied to do so in violation of the NLRA, do not have the time, energy, or resources to fight about such things. They too have more important work to do.

Second, can you please answer this: how is taking away a person's right to vote is actually giving them more rights? This is doublespeak nonsense. In my opinion, you seem all too glad to sacrifice individual civil rights (which are the basis for this country's entire legal system) for some self-perceived benefit to the collective.

Your solution, as is that of your champions' in Congress, is to force unions on American workers. Whether they want them or not. And based on election results, and the microscopic percentage of the private sector that is unionized, they have resoundingly told your side that they do not want unions.

I guess elections are only good things when your side wins.

Posted by: Hans Nilges | May 22, 2008 5:14:27 PM

Oh, Jay, I suppose we can, though I hardly think it's worth the effort. And while I would agree that the accusation of "funding" is "evidence-free," I have little doubt that "coordinating and orchestrating" is "evidence-free," or that it matters much. Do you have any doubt that Lofaso distributed her article to friendly commentators, and that Eisenbrey would have been on that list?

And your challenge to Hans --- suggesting that you can "verify empirically" union coercion of employees by "the number of NLRB decisions finding that a union violated 8b1A by coercing or intimidating an employee into signing an authorization card," or measure relative coercion by comparing them to those finding analogous violations by employers --- is so silly as to diminish your credentials as a commenter. It's a little like looking at statistics regarding convictions to measure crime. Board decisions on any particular issue are a poor measure of actual violations; Board decisions on union wrong-doing are even more so, given the notoriously pro-union biases of the Board's bureaucracy, the unreviewable discretion of the General Counsel, and the GC's penchant for ramming "settlements" down the throats of charging parties.

Posted by: James Young | May 23, 2008 7:03:21 AM

First and most importantly, the rhetoric that EFCA would "take away the right to vote" is simply wrong. EFCA would merely change who has the right to insist on an election from the employer to a significant minority of employees.

Under CURRENT law, there is no "right" to an election. Unions and employers can agree to use the voluntary recognition process. But employers -- not employees, employers -- can insist on an election if they want to. Under EFCA, employers would lose that right, but an election would still be required if 30% of the EMPLOYEES requested one. I think a system in which employees, not employers, choose whether to have an election is better.

Second, another good way to test the claims of EFCA critics would be to check out the experience of the several states that have adoped EFCA-like rules in their public sector labor statutes. Last time I checked, New York, Illinois, New Jersey, New Hampshire, Oregon, and I think (but am not sure) Mass. all have such rules. Oh, and parts of Canada have used that rule for a long time. I'm not aware of any evidence that the parade of horribles EFCA critics predict has actually happened in the jurisdictions that have already adopted this rule. On the other hand, we know about the parade of horribles that actually have occurred with the broken election system currently in place.

Finally, James, to call the Bush Board "notoriously pro-union" completely undermines your credibility.

Posted by: Joseph Slater | May 23, 2008 7:43:57 AM

Although substantive disagreements are fair game (and encouraged), making personal accusations based on pure conjecture is not helpful. Just to put this matter to rest, I checked with Lofaso and she stated:

"I did not distribute the paper to Ross Eisenbrey. I was as surprised as anyone to learn that he read my paper and was flattered that he would take the time to write about it."

That said, even if she had distributed it to him, who cares? Academics try to distribute their writings to as many people as possible. Some, like the ACS here, are friendly fora, others are not. Indeed, as our original post on Lofaso's paper announced, she distributed it on SSRN, which is free and widely read by people of all political stripes.

Criticizing people for distributing work to others of a like mind is silly and--given the identity of many of those making such criticisms--astonishingly hypocritical.

Posted by: Jeff Hirsch | May 23, 2008 8:58:50 AM

Hans -- Since you’ve all but declared that you’re impervious to the influence of facts, I’m not sure how much farther we should carry this discussion. But here are a few things to consider. Employers spend truckloads on money on union avoidance, they litigate union victories in NLRB elections to the hilt, and they’re happy to engage in massive trench-warfare litigation against unions (see, e.g., the recent spate RICO suits by Titan Tire, Food Lion, Cintas, Wackenhut, and Smithfield Packing). So, the idea the employers are too litigation-averse to fill out a ULP charge and let the government do the litigating strikes me as … well… not altogether plausible.

Also, I think there’s a great exercise we can do to figure out whether your commitment to secret-ballot elections extends beyond mere posturing and rhetorical b.s. Do you think there are any circumstances -- shy of an NLRB election -- in which an employer should be able to voluntarily recognize a union? Do you think there are any circumstances -- shy of an NLRB decert election -- in which an employer should be able to withdraw recognition from the union? If your answer to either question is “yes,” we’re clearly in the realm of b.s. And, again, I’ll happily eat my hat if you’re not in the b.s. camp.

James -- I thought my agreement to limit Hans’s challenge to Battista Board decisions would’ve forestalled the “dirty hippies and commies at the Board” objection, but oh well. Fine, let’s look at another metric. In a study commissioned by American Rights at Work, two professors conducted a national telephone survey of 430 randomly-selected workers from worksites where employees sought to form unions using either an NLRB election or card check process in 2002. They found that, of all workers surveyed (election and card check combined), almost four times as many workers reported that management coerced them “a great deal” as opposed to the union (22% vs. 6%). Also, fewer than one in twenty (4.6%) workers who signed a card with a union organizer reported that the presence of the organizer made them feel pressured to sign the card, whereas 46% of workers complained of management pressure during NLRB elections. Now, facts have a well-known liberal bias, so you may want to just dismiss these findings altogether. Don’t worry, it won’t “diminish your credentials” as a commentator.

One final note on the whole “coordinating and orchestrating” business. First, you acknowledge that it doesn’t matter much—presumably because academics show their work to others all the time—which was precisely why I chided JR about there being some kind of malign plot involved. And, second, didn’t you read Eisenbrey’s piece to actually be a criticizing for Lofaso for not going far enough at certain points? Why would you coordinate with another academic who will then, in turn, say that you’ve failed to take account of some significant fact?

Posted by: jay | May 23, 2008 9:03:28 AM

Well, Joseph, let's deal with your misrepresentation first: I never "call[ed] the Bush Board 'notoriously pro-union.'" What I ACTUALLY did was refer to "the notoriously pro-union biases of the Board's bureaucracy." Try to avoid misrepresenting what I say. One presumes that you can rebut it without misrepresenting it.

Second, regarding your assertion that EFCA would not "take away the right to vote," and "Under CURRENT law, there is no 'right' to an election," you seem to be (surprise!) playing semantic games. Dealing with the latter assertion first, you WERE correct, pre-Dana/Metaldyne, which is the point made by Lofaso. Now, of course, the same 30% showing of interest necessary for a union to seek a certification election allows employees to challenge a voluntary recognition, previously barred under the Board's voluntary recognition bar doctrine. As to the former point, EFCA would most certain "take away the right to vote," since there is no provision in the bill --- as I understand it --- for an election to challenge a now-mandated card-check recognition, whether sought by an employer or 30% of employees.

The real question is why EFCA's advocates would deny to employers the right to put a union to its proofs? To ask the question suggests the answer.

As for "test[ing] the claims of EFCA critics" by "check[ing] out the experience of the several states that have adoped EFCA-like rules in their public sector labor statutes," I'd rather test out their economic claims by looking at the tax burdens in those states. I suspect that taxpayers would take a different view of the salutory effects of mandated-union recognition under such a regime.

As for your efforts, Jeff, that's a lot more trouble than seems necessary. I wouldn't have considered it a big deal if Lofaso had done so, nor much of an accusation (which was not mine, by the way) that she had done so. I agree completely with your comment "Who cares?" In fact, were I Lofaso, I would --- based on this experience --- insure that my next paper goes to Eisenbrey. A little shameless self-promotion goes a long way in her line of work, as you note. Not that there's anything wrong with that. But kindly don't confuse my comment with "Criticizing people for distributing work to others of a like mind."

And finally, Jay. You know, the funny thing about the blogosphere is that there's always a class of individuals who just can't take, from people they despise, "Yes" for an answer. As for my reading of Eisenbrey's comment, I suppose that your reading of it as "criticizing" is fair, but I fail to make the connection between that fact and that it belies coordination that, we agree, would be no big deal (though I think that funding --- for which there is no evidence, and you rightly chide JR for making that accusation --- would be a big deal). I FREQUENTLY submit my work to others for their comments and criticisms. Anybody who publishes anything knows that, you stick your head up, you're going to get shot at, and if one were of a conspiratorial mindset, one might even speculate that an academic would distribute his or her work to a political hack in the hopes that it would be used as a stalking horse for advocacy of views that the academic could not, for whatever reason, advocate themselves.

And a study commissioned by "American Rights at Work"?!?!? Now THERE'S an unbiased source! Isn't that the union-funded group which initially tried to horn in on the prominence of the Right to Work organizations by choosing a similar name? As for its "study," kindly provide a reference where it is published, and then perhaps --- after reviewing its premises and biases --- we could have an intelligent discussion about it.

And BTW, employers are the only ones who "litigate [opposing] victories in NLRB elections to the hilt." I can give you at least two examples of a UNION litigating NLRB elections "to the hilt" in which I represented the petitioners. One was a deauthorization vote lost by the union by a vote of 211-12, for which the union demanded and got a four-day objections hearing in Region 21. The other was a decertification case in which the union (with employer assistance) won narrowly, the petitioner's objections were sustained, and the union lost two successive elections before it exhausted the NLRB process.

Posted by: James Young | May 23, 2008 11:09:38 AM

Correction: "employers are NOT the only ones..."

Posted by: James Young | May 23, 2008 11:15:02 AM

James, I was mainly responding to JR, but also wanted to rebut your statement that "Do you have any doubt that Lofaso distributed her article to friendly commentators, and that Eisenbrey would have been on that list?"

I'm also not sure that your take on the Board bureaucracy is accurate. Based on my time at the NLRB, you're correct that most line attorneys tend to be pro-union. You may be surprised (I was), however, at the number of higher, career officials who were decidedly not pro-union. And, of course, the current GC--who I actually think has generally done a good job--is certainly not pro-union. More important, however, is that I can't think of a single Board attorney who didn't take their duties seriously, no matter the charging party. I've personally been screamed at by union counsel because of a litigation position I pushed (which, incidentally, supported a RTWF client). And I was not unique in that regard.

Posted by: Jeff Hirsch | May 23, 2008 11:23:21 AM


Even had EFCA passed, if 30% of the workers wanted an election, an election would still be mandated. EFCA only removed the "election at the employer's option" provision.

As to Dana/Metaldyne, I'll repeat those asking you if prior to those recent cases, you were outraged -- for the many decades this was true -- that employers could agree to recognize unions voluntarily, period.

As to public sector jurisdictions, you are trying to switch your parade of horribles: before you predicted that union goons would force their will on innocent-but-intimidated folks who didn't want unions. Since you don't know of evidence of that in jurisdictions that actually have such rules, now you speculate on the impact on tax rates. Since you're the one making claims about purported bad effects of EFCA-like rules, the burden is on you to try to make some actual cause-and-effect connection between EFCA-like rules in those states and tax rates. Let me know when you have something. As to what the "taxpayers" think, I'll just note that those amendments to state public sector laws were passed by the normal democratic process.

In any event, your side has to deal with the fact that rules like this are actually in place in some jurisdictions; if these rules really have bad effects, you should be able to show us.

As to misrpresentations, you know as well as I do that the reason unions don't want to always be forced to prove majority support in NLRB elections is that they believe -- with very good reason -- that the NLRB election process is broken and poisonously biased in favor of employers. I expect you disagree, but there is a quite a bit of evidence supporting that view.

I'll be away from my computer this weekend, so this will be it from me for a bit, at least.

Posted by: Joseph Slater | May 23, 2008 11:53:20 AM

James --

(1) You think that looking at the disparity between the finding of 8b1As and 8a1s in Board decisions is invalid because the dirty commies working for the Board don’t find against unions, and the dirty commies working for the GC won’t issue complaints against unions or will ram settlements down the throats of charging parties. Ok, whatever you say, hombre. Assuming that’s true, can you agree that comparing the relative number of ULP charges--as opposed to complaints and board orders--would be an accurate measure? If so, I think we’re back to the several-orders-of-magnitude difference I was discussing earlier.

(2) For a guy who professes to care about evidence and logic, this tidbit is pretty puzzling: “I'd rather test out their economic claims by looking at the tax burdens in those states.” Do you have even a smidgeon of evidence for a causal relationship here? Not just for the connection between card-check and higher taxes, but for some connection between higher taxes and union coercion during the card-check process? After all, that’s what we’re trying to establish.

(3) As predicted, you went for the bias card right away on the ARW study, which isn’t surprising. But that cuts both ways. By your own standards, why should anyone believe what *you* say? Your blog makes clear that you are the mostly nakedly partisan Republican imaginable. (I mean, you even use that old-timey “Democrat Party” slur and won’t mention Obama’s name without reminding everyone that his middle name is Hussein.) But, whatever, I’ve referenced a study that supports my position. If you want to flyspeck the data, I suggest you contact the authors and ask for them; I’ll bet they oblige. In the meantime, do you have anything remotely empirical to back up your position -- aside from the marginal tax-rates in Denmark or whatever point you were trying to make above?

Posted by: jay | May 23, 2008 12:03:35 PM

And (4) James, there’s actually quite a bit we can agree on: unions are just as litigious as employers. But that just proves my point -- and disproves the baseless one Hans tried to make early on. If we assume that both parties are equally litigious, the higher prevalence of cases involving employer coercion means that there’s more employer coercion, and the lesser prevalence of cases involving union coercion means there’s less union coercion.

Posted by: jay | May 23, 2008 12:09:00 PM

I don't have time to respond to everything above, but I do want to say "hi" to Prof. Slater, who taught me employment law.

Please give my regards to Prof. Richman et al.

And I would like him to explain how the following language does not take away a worker's right to vote (note - "the Board shall not direct an election but shall certify the individual or labor organization as the representative" which is at odds with his claim that an election would be directed (perhaps it is the plain language of the statute is confusing me):

(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

I envision hordes of people in purple shirts descending on workers in the privacy of their own homes and "convincing" them to sign a card, if they know what is good for them. Then "the Board shall not direct an election, but shall certify" our purple friends as the bargaining rep. Thus, the employees would be deprived of their right to a private ballot election (and the employer forced to binding arbitration to boot!!!)

I wonder if Jay would mind if, instead of voting for Obama or Clinton in the privacy of a voting booth, he would mind if his choice for president could instead be selected by a group of 6' 4" College Republicans presenting him with a card at his own home that says "I support McCain". If he will endorse this method for selecting a president, I will endorse the EFCA. I promise.

Posted by: Hans Nilges | May 23, 2008 1:19:18 PM

Thanks Joe, now we know who to blame for all of this. :)

This discussion neatly encapsulates why the NLRA hasn't had a substantive change in decades, and why it needs some so badly. I fully agree that EFCA is problematic; I don't much like the idea of non-secret voting either. However, the status quo isn't so pretty either. If you look at the current environment from the employees' point of view, the plain fact is that the idea that they have a free and fair choice regarding unionization is a joke, albeit not a funny one (employers seem to ignore this when criticizing EFCA, which reminds me of the line from the Supreme Court about being suspicious when employers start citing employee interests). We can argue about how imperfect--I, for one, would much rather get roughed up by some big College Republicans than lose my job, and my reemployment prospects are much better than most employees--but the NLRB's enforcement of election misconduct is shameful. Some of it is it's own fault, such as delay, but other problems are more statutory, such as the lack of meaningful remedies. EFCA is a partial and imperfect attempt to right that imbalance. It's not a particularly satisfying one, but it has to be viewed relative to what exists now.

That said, I'm all for a true Employee Free Choice Act. It could require secret ballot elections to certify and decertify a union. But it would also ensure that employees have access to information from both sides and that employees are free from coercion. The Board would have the power to quickly and strongly remedy election violations (read: fines). Only then can we begin to talk about employees actually being able to exercise a free choice.

Posted by: Jeff Hirsch | May 23, 2008 6:07:58 PM

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