Tuesday, November 25, 2008

Blevins on the EFCA

Johnblevins John Blevins (South Texas) had an opinion piece supporting the passage of the Employee Free Choice Act (EFCA) in the Houston Chronicle this past Saturday.

Here's a taste:

The EFCA . . . would provide employees with an alternate method of creating a recognized union — the "card check." When a majority of employees signs a card supporting self-organization, a union is formed that the employer is required to recognize. (Card check is allowed under current law, but employers are free to ignore it).

[Joseph] Gagnon's[, who previously against the EFCA in the same paper] critique of the EFCA is a familiar one, and it goes something like this: By permitting card check, the EFCA would undermine the "truly free" choice that secret-ballot elections provide.

Without the secret ballot, union organizers would allegedly be free to coerce their fellow employees.

In fact, this critique featured prominently in a recent (and absurd) employer-sponsored ad campaign featuring a Sopranos actor posing as a mob boss pressuring employees. Fortunately for us all, the New Jersey crime families have yet to make significant inroads into our nation's service industries. Sleep tight America.

In all seriousness, Gagnon's bleak portrait is as imaginary as the Sopranos commercial. The EFCA will not lead to coercion — it will end it.

The most critical point is that current elections are anything but free and fair. They are one-sided affairs dominated by the employer.

Indeed, to call them "elections" is a bit generous given the various forms of coercion that employers can and do apply to influence the vote . . . .

There is also little reason to worry that the EFCA would lead to coercion by fellow employees. Most obviously, unions have strong incentives not to intimidate or alienate employees. If unions lose employees' loyalty, they can be disbanded in a year. In any event, the reality is that employees have far more to fear from employers who control both their paychecks and working conditions than from their fellow employees.

The broader policy debate about the benefits of unions is, of course, a different question. Personally, I believe that strong unions are the best way to lift wages and to restore a vibrant American middle class that enjoys real benefits. Others disagree, and people can have good faith arguments about these issues. But regardless of one's position on unions generally, we should not pretend that the modern election system is free and fair. At the very least, the EFCA deserves an honest debate based on the facts.

I and other supporters of the EFCA have made similar points and I have highlighted the degree of coercion employers have over employees in the workplace in advocating for state passage of Worker Freedom Act legislation which would prohibit employer captive audience meetings. 

I similarly don't see WFA laws as against First Amendment values, as the prohibition does not limit speech, but only the conduct of forcing employees to listen to anti-union invective at pain of losing their jobs.

Hat Tip: Steve Nelson

PS

https://lawprofessors.typepad.com/laborprof_blog/2008/11/blevins-on-the.html

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Comments

"honest debate based on the facts"!?!?! That's what EFCA's proponents want to avoid at all costs.

Perhaps the Sopranos ad was over the top, but please spare us the pretensions that misrepresentations are never made by union partisans in order to secure signatures on union membership and dues checkoff authorization cards. By way of example, I have personally represented --- and have colleagues who have represented --- young people with part-time grocery store jobs who have been coerced into doing just that, with the claim that it's only to "get more information" from the union. Even in a Right to Work state like Virginia, they then find themselves subject to a one-year, irrevocable dues checkoff authorization (in stores already organized). Knowing that this has happened, it is hardly a stretch to imagine similar tactics in union organizing campaigns.

Of course, none of us has been asked to give testimony before various Democrat-controlled congressional committees regarding this illicit tactic. "Honest debate on the facts"? I think not.

And, of course, mandatory card-check recognition would avoid giving employers the inconvenient opportunity to give the other side.

Posted by: W. James Young | Nov 26, 2008 4:18:39 AM

If you truly believe that unions do not coerce employees to sign cards, then it is painfully obvious that you've never worked in a company that has been targeted by a union. I've been personally bullied into signing a union card, despite the fact that I was only 17 years old at the time and prohibited from union membership if the union HAD won. I've worked in retail companies where the union organizers would corner employees in the parking lot and prevent them from leaving the lot until they had signed a card. Most employees just signed to get the slimeballs away from them, knowing they could have a secret ballot to vote NO when the time came. The unions were never successful in unionizing any of the stores, by the way, despite getting nearly 100% of the employees to sign cards. I know you like to think that the way that YOU get to work (in a nice clean office, with nice polite secretaries to fetch you coffee and your paper) is the way that everyone works, and that everyone respects each other, etc. But in the REAL world, you rarely see things like manners, respect or even common decency, especially in the unionized environment. Perhaps if you had grown up in a household that exposed you to the union mentality (Rich Trumpka was a family friend, by the way, and came to the house often and my father was a staunch Teamster who rose thru the ranks to become his local president) and then gotten bullied by union representatives while still underage, and then ended up dealing with employee complaints regarding inappropriate tactics used by union organizers as an adult professional, THEN you would have a true picture of how the unions TRULY operate. The commercial being aired is actually tame compared to reality. I know it is a very ugly thought to think that people behave in that way; unfortunately, the truth is not always pretty. The real shame is that most of the people who get to vote on this legislation have the very same white bread upbringing as you obviously did, along with that pollyanna view that "unions don't REALLY behave that obnoxiously" and that employees do not deserve the right to a SECRET BALLOT free from coersion.

Posted by: Daughter of a former Teamster Local President | Nov 26, 2008 6:27:32 AM

I am more and more into the idea of having union elections within 10 days of the union's demand for recognition.

Of course there are abusers, but the Right-to-Workers seem to avoid a nasty part of the debate such as the overwhelming strength that the employer has vis-a-vis the union when it comes to getting information out. The employers have access to a whole lot more time and knowledge about the actual employees, and find me some organizing drives where employers never retaliated. The very purpose of the NLRA was to balance the power to a degree, and it is revisionism to say differently. If you are against the NLRA and its purposes, fine - just say so.

I could be wrong, but it seems to me that you have a beef with heavy handed union coercion, but not heavy handed employer coercion (I am not talking about illegal activity, just lawful coercion).

So what is a good alternative that meets everyone's interests? Points we agree on are: minimize unlawful coercion on both sides, minimize harassment on both sides, real penalties when either side violates the law (such as stiff fines for terminating union supporters as well as backpay and postings), and a quicker system of resolution of these issues.

Posted by: Per Son | Nov 26, 2008 7:21:08 AM

Well, Per Son, the difference is what we (you and I; I don't speak for my employer any more than you speak for yours) consider "heavy handed ... coercion." I strongly suspect that you would characterize so-called "captive audience" meetings as such, but the funny thing is, as long as employees are compensated, they are no more "heavy handed" or "coercive" than any other meeting an employer conducts (e.g., training), since I presume that employees are capable of separating the wheat from the chaff. The unions' complaint is more that employers get to conduct such meetings, and they don't, but it IS the employers' time, after all.

One question that I have: would you likewise require decertification and deauthorization elections within ten days of the filing of a petition? After all, unions are as adept at employers in the use of the "blocking charge" to postpone elections.

If your answer is "No," then you will have amply illustrated that "fair" isn't your goal, and that altering the playing field in favor of a class of preferred actors is.

Posted by: James Young | Nov 30, 2008 9:54:57 PM

James:

Yes I would - as long as it would not be contrary to an election bar or contract bar.

Yes I am interested in fair.

Posted by: Per Son | Dec 1, 2008 9:09:58 AM

No wonder you use a pseudonym. I doubt your employer would appreciate your association with that statement. ;-)

Posted by: James Young | Dec 1, 2008 12:40:27 PM