Friday, July 18, 2008

Johnny Sack and EFCA

Sack Matt Bodie (St. Louis) has an interesting post on Prawsblawg about a new anti-EFCA ad, featuring the actor who played Soprano's mobster Johnny Sack as--you guessed it--a union boss who intimidates workers.  Matt identifies many of the problems with this line of of argument. 

I've always been somewhat torn on EFCA.  In an ideal world, having secret ballot elections seems the best way to vote for unionization.  Of course, what this ad and other anti-EFCA arguments refuse to acknowledge is that the world is far from perfect, as the level of employer intimidation that goes on almost certainly exceeds union intimidation by a country mile.  EFCA, then, is an imperfect answer to a bad situation. I've always thought that it would be possible to implement a system that ensures a far more intimidation-free election (e.g., Canada's expedited elections), but the political environment makes such an outcome unlikely. 

Hat Tip:  Anne Marie Lofaso


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To suggest that there are legitimate studies to establish routine, pervasive, nationwide or sectorwide employer or union coercion is wrong. At best, studies have focused on a single campaign or data for one state for a year or two. Some studies are funded by labor or monies channeled to tireless pro-labor "academics" a/k/a "scholars" to be purposely listed on their webpage propoganda and "white papers." (Why not have all "academics/scholars" provide transparency and report funding sources for their research and for their affiliated schools). Moreover, data is not robust and simply does not permit the broad conclusions that follow. NLRB data is limited and, without an enormous undertaking to analyze the underlying facts in each matter filed, one cannot draw statistically significant conclusions to afford sweeping politicized commentary. Talking to union organizers only in a single metro-area might be interesting but representative of what? Considering that union behaviors occur off-site almost exclusively, without NLRA informed persons/employees, what goes unreported? Finally, those who study and report undermine their credibility when repeatedly commenting that employers-all are law violators. These behaviors do not well advance the debate. In any event, the amendment of Section 2(5) is long overdue and essential to afford employees in all workplaces options - traditional union or something else. Slavishly supporting a tyrannical single choice - traditional union or nothing - widely misses the mark.

Posted by: JR | Jul 19, 2008 6:53:52 AM

Since JR is repeating his comments on Prawfsblog, I'll repeate some of mine.

First, although we could talk about EFCA generally, let's consider the "it will help the mobsters" smear this commercial suggests.

We need to understand that card-check recognition is already *allowed* under the NLRA -- but only at the *employer's* option. If a union presents an employer with a legit majority of signed cards, an employer is legally allowed to recognize the union without an election -- and this happens not infrequently.

For those claiming to be concered about mob influence, this would seem to be a big problem. After all, in the handful of industries where unions are infested with mob elements, the employers typically are too. And there's nothing in the *current* law that prevents a mob-influenced employer from recognizing a mob-influenced union without an election.

Here's the key point: EFCA wouldn't take away any long-standing right of *employees* to insist on an election; rather, EFCA would take away the *employer's* right to insist on an election.

Second, it's amazing that JR can sweep away so many studies so briefly and in some cases, via ad hominem. These studies are plentiful and easy to find, so I'll let others judge, but they certainly don't all, or even mostly, focus on one narrow area or time period. And the studies comport with the real-world experiences of those that work and practice in the field.

I'm also curious: to what does JR attribute the wide gap in public sector unionization rates and private sector unionization rates? After all, public sector labor laws typically provide *fewer* rights than does the NLRA. My belief is that this is because public sector union elections campaigns (for a variety of reasons) typically do not feature anything like the intimidating and often illegal tactics used in private sector campaigns. Thus, we see unionization rates in the public sector that more closely mirror the actual desires of U.S. workers, because public workers are generally being given uncoerced choices.

I asked JR in the other thread and he didn't reply. Your theory is what?

Posted by: Joseph Slater | Jul 20, 2008 8:44:03 AM

Employees have recourse through the NLRB in matters of coercion. This is a non-issue-you only see it used as a scare tactic by anti-union forces.

Posted by: tom | Jul 21, 2008 4:51:02 AM

Like most ads, this one uses hyperbole. but folks, you're all missing the point: A card-check system which allows the employer no opportunity to present its case is hopelessly one-sided and unfair. If employer unfair labor practices make a fair election impossible, under current law the NLRB possesses ample opportunity through a Gissel bargaining order to impose the EFCA remedy - but affords the employer due process. Basing a bargaining obligation on signatures secured through misrepresentations, promises, and downright falsehoods which are endemic in on the Labor side of a card-signing campaign has nothing to do with "free choice." This bill hopes to tilt the field dramatically. And I'm not even warmed up on the subject of arbitration to impose a first contract, another "fair" feature. Let those who view this battle from the comfort of academe wax philosophical, but the reality is that the bill - which will no doubt pass in some version - is bad policy and woudl throw out core principles of labor law which have stood the test of history.

Posted by: Charlie Edwards | Jul 21, 2008 12:33:31 PM

As Joe points out, card check recognition exists already at the employer's option under the NLRA and some employers take that option. Additionally, six states have card check recognition in the public sector. I haven't seen any evidence from those instances that the employers at issue lack the ability to make their case while the union is gathering support or that employees are being hornswaggled into something they don't want.

Posted by: Marcia McCormick | Jul 21, 2008 2:17:56 PM


There are two problems with your argument that employees are already protected by the NLRA against eployer coercion. First, the sanctions for such activity are incredibly weak. Employer fires X for union activity; best case scenario for X is s/he gets the right to be reinstated to the job a year or two down the road, with maybe no backpay (if the employee made or should have made as much money at a different job). It's barely a slap on the wrist, and employers routinely accept such trivial sanctions to avoid unionization.

But second, if you really think NLRB sanctions for intimidation work, then the problem with your argument is that employees have an equal right to go to the NLRB to complain about *union* intimidation too.


I practiced labor law in the real world for over a decade before joining the comforts of academe, and your picture of card check signature don't sound familiar to me. Similarly, your vision of unions getting Gissel orders strikes me as unrealistic: do you understand how hard it is to get the NLRB to grant such an order, and then how much harder it is to get a court to enforce it?

And again, since card check campaigns are currently allowed -- albeit only at the employer's option -- would you ban those?

Finally, I echo Marcia's point about states which have adopted mandatory card-check recognition in their public sector labor laws. The sky hasn't fallen. To repeat myself from the Prawfsblog thread, it's kind of like the gay marriage debate: the experience of Mass. and some other jurisdictions around the world shows us that, amazingly enough, gay marriage doesn't lead to legalized man-dog sex.

Posted by: Joseph Slater | Jul 21, 2008 3:57:35 PM

Public sector labor relations is to the private sector as fish is to fowl. The considerations are totally different when a union has far more limited ability to demand economic benefits, and when the weapon of a strike is either curtailed or absent.

I will concede that Gissel orders are harder to come by than they were in the 1980s, but they are designed to reflect a reality: Informational efforts by employers faced with an organizing campaign often result in a significant diminution in the percentage of apparent support for the union. The card-signing plea is that "all we are trying to do is get an election; you aren't joining anything and won't have to pay anything." Willingness to agree to a signature thus represents submission to the electoral process or, just as likely, a means of getting rid of a solicitor. And the employee is told their identity and signature will not be known, but challenges often result in disclosure.

EFCA is neither a panacea nor even a reasoned approach to a perceived problem. You neglected to say which side you practiced on in the real world.... Sorry, but your view or mine may become irrelevant if Congress has its way. The result won't be pretty.

Posted by: Charlie Edwards | Jul 22, 2008 2:42:12 PM

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