This essay was originally written in March of 2009 as is noted at the bottom. With the benefit of history’s wisdom we now know that this legislation did in fact pass the 111th House of Representatives only to fall victim, as did 300 some other pieces of legislation, to the abuse of the cloture/filibuster rules in the 111th Senate at the hands of Mitch McConnell and the Senate Republicans and die there.
The strategy of just say no was employed by the Republican Senate minority to slow down the process and defeat as many of President Obama’s initiatives as possible by letting as few as possible even come to a vote. The later publically stated number one objective of the Republican Party was from January 20, 2009 to today to make President Obama a one term President. If actions toward that end harmed America the Republicans really did not and still do not care. Classic partisanship over patriotism!
As evidenced by the actions of the Republicans at the state level subsequent to the 2010 mid-term elections the assault against unions has broken out into a full scale war. They are no longer content with retaining their unfair advantage; they want nothing short of total annihilation of unions and the collective bargaining system.
THE EMPLOYEE FREE CHOICE ACT
It is not often that one can predict where the decisive battle of a war will be fought before it starts. This is one of those rare exceptions. The Employee Free Choice Act will be a war and the decisive battle will be fought in the United States Senate.
The precursors to war began last summer with anti-union television ads depicting a member of the Soprano family intimidating workers. At that point in time H.R. 1409, S. 560 had not even been introduced. That happened on March 10, 2009. During the summer of 2008 the nation was focused on the Presidential election and the economy.
Basically three things have to happen for legislation to become law in this country. It has to be passed in the House of Representatives, the Senate and the President has to sign it or at least not veto it. President Obama is on record supporting The Employee Free Choice Act so assuming it reaches his desk that hurdle is already cleared. Given the rules and the makeup of the House I don’t expect passage in that chamber to be a big problem. That leaves the Senate.
Three things The Act does
There are three basic provisions in the legislation. It would give workers the choice of using a sign up card procedure to indicate their support for a union. This process is commonly called Card Check. It triples damages for employers who fire union supporters or break other labor laws. It calls for arbitration after 120 days of unsuccessful bargaining with a newly unionized workforce.
Unless you have done considerable homework you probably aren’t even aware of the second and third provisions. All the publicity has been on issue one and much of that publicity and supporting press has been at best misleading and at worst dishonest. The anti-union people have distorted the facts and the unions have been so busy catching up and telling the truth that they haven’t been able to get to the second and third issues. The anti-union side won’t raise issues two and three because they can’t even lie effectively enough to use them to their advantage.
Under the current provisions of the National Labor Relations Act employers are only required to recognize a union that the workers have selected via a secret ballot election.
There is currently a provision for workers to present signed selection cards from over 50% of the workers but the employer is not bound to honor them.
Under the proposed legislation the employer would be required to recognize a union after being presented with signed cards representing a majority of the workforce. There would be no need for an election since the outcome was already known.
However, employees may still call for a secret ballot election if 30% petition for one.
The second provision is tripling the damages for employers who fire union supporters or break other labor laws. The major factor here is firing of union supporters. I will go into more detail on this later. The current penalties associated with illegal firings are paying back wages minus any earnings that workers had after they were fired. This is akin to catching a shoplifter and his or her only penalty is to pay the sale price not even the full price. In other words if you get caught you pay what you should have or less. If you don’t get caught you pay nothing. If anyone see the deterrent to crime here please enlighten me.
This legislation requires arbitration after 120 days of unsuccessful bargaining. One of the simplest union busting strategies has been simply to not negotiate. Approximately one-third of all certification elections do not result in a contract. More on this topic later also.
It takes away the secret ballot
This has been the big argument by the opposition to The Employee Free Choice Act. Simply stated, this is not true. The Act simply makes the results of a successful card check campaign binding and not left to the discretion of the employer. In fact a minority of as little as 30% of the workers can force a secret ballot election.
Would someone explain to me how allowing a minority to dictate that the entire group be forced into participating in a secret ballot election takes away workers’ right to a secret ballot election?
On March 20, 2009 the Wall Street Journal finally admitted that The Employee Free Choice Act did not eliminate the secret ballot. This was not done as a retraction, even though the Wall Street Journal has several times stated that The Act did take away the secret ballot, it was done in an editorial that was very slanted at best. Nonetheless it is progress.
As part of the old “tell a lie often enough and it becomes the truth” strategy, the line that The Employee Free Choice Act takes away a workers’ right to the secret ballot is repeated time and time again. Expect to hear it over and over again until this issue has passed or died in the Senate. These people will never let the truth get in the way of a good selling point. Expect them to go on friendly media and repeat this lie unchallenged in interview after interview. Why would someone keep repeating a lie? Because, left unchecked, it works. The public simply doesn’t have the time to investigate every issue and enough people get fooled.
I was appalled when I found out that the employer’s penalty for being found to have illegally fired an employee for union activities was back pay minus any pay the employee has earned from another employer in the interim!
Put yourself in this scenario. You are working for a company and some of your co-workers are trying to form a union. You have yet to take a stand. One of the leaders of the movement is a guy you have worked with for years. You like him. You know he is a good productive worker who reports to work sober, doesn’t take frivolious days off, dosen’t get involved in horseplay or other activities that cause a danger or distraction, in other words keeps his nose clean. Suddenly he is fired. You put two and two together and all of a sudden the idea of a union is not very attractive. Would it be fair to say you have been intimidated? I think so.
This is not a fantasy. It happens all the time. It is an easy way for an employer to intimidate a workforce. The penalty if the employer gets caught is minimal. You put yourself in the employer’s shoes and make the risk/reward decision.
I sifted through a lot of data on this topic. Looking at both sides’ data I was able to draw two conclusions. The incidence of unfair dismissals in retribution for union organizing activity is both real and significant. It also spiked twice since World War II, the two spikes coordinated with the Reagan and Bush 43 administrations. Interesting!
I must admit I’m not a big fan of binding arbitration. I prefer that two parties work out an agreement that is fair and equitable to both. However if either side simply stonewalls the other with no threat of a deadline there will never be an agreement. Please note The Employee Free Choice Act is only imposing this binding arbitration clause for the initial contract. The arbitrated initial contract would only be good for two years unless both sides wanted a longer term.
What this clause, (which is a little more detailed and can be initiated by either side after 90 days of unsuccessful bargaining), really accomplishes is holding people’s feet to the fire.
The second easiest anti-union strategy is simply not to enter into a contract. If you couldn’t intimidate them simply don’t negotiate with them. See how long the union lasts when it can’t get a contract.
Enter the union busters
There is an entire industry that has sprung up with the express purpose of keeping an organization union free. These consultants will come in and find out who the pro-union activists are and give the employer their target list for firings.
Before the secret ballot is held there will be a period of several weeks where the employer has a distinct advantage. The employer can require employees to attend training sessions. These training sessions will be seminars designed by the union busters to influence the vote and flush out union sympathizers. This is done on the work grounds and during working hours. The worker is simply ordered to report and has no choice but to attend. The union is prohibited from conducting any activities on company grounds or company time during this period.
So the voter is subjected to constant, and not necessarily true, propaganda from one side. Sounds like Chairman Mao or Rupert Murdock to me. Scare tactics like, “ If we vote union they are going to move the plant out of the country,” certainly get people’s attention. Tell a lie often enough and it becomes the truth. How free would our elections be if we allocated the vast majority of communications resources to only one party?
Who will be the anti-union field generals?
Mitch McConnell the Republican Senate Minority Leader will lead the charge. He has already been outspoken in his disingenuous concern for the rights of workers to a secret ballot being taken away from them. The only thing worst than being a hypocrite is being a lying hypocrite.
Bob Corker of Tennessee will be next in line. You remember Bob Corker don’t you? He is the guy who ran the campaign ads against Harold Ford, Jr. implying that Ford – an African-American – was just trying to pick up white women on the phone at the Playboy mansion. Of course any hint of racism was just a figment of my imagination. I’m sure the ads referred to some Tennessee issue I’m simply ignorant of.
Thad Cochran and Richard Shelby will be feigning their moral indignation in defense of the American worker as well.
What do all these Senators have in common? They are all Southern Republicans from states with significant non-union, non-American auto production facilities. But I’m sure that is just a coincidence and I’m flying off the handle and impugning the integrity of these fine, loyal Americans.
How do I know these will be the leaders? I know who they are because they tipped their hand during the auto bailout. They are throwbacks to the Reagan administration. The mantra was, “We have to break the unions before they break the country.” Did you ever wonder why during the first financial bailout there was never any conversation about how much Wall Street people were paid, but the first thing seized upon in the auto bailout was union wages. What is the difference between the financial industry and auto industry workforces? One is unionized the other is not. The Republican smear machine lied about autoworkers’ wages also. The Republican got more Electoral Votes than there are $75.00 an hour UAW members. Of course, again after that statement was debunked they just kept repeating it anyway. Old habits die hard.
These men are dangerous. They are willing to ruin the American economy if they have to just to kill any unionized American industry. They will throw the baby out with the bathwater. When it comes to industrial policy they have a one-track mind, if legislation helps organized labor they are against it.
Time for a change
While enacting The Employee Free Choice Act would be a boost to organized labor it is far from a panacea. It merely levels the playing field a bit.
The National Labor Relations Act, (which The Employee Free Choice Act seeks to amend), was enacted in 1935, during Franklin Roosevelt’s administration. It was a wonderful achievement for its time, one of many from that administration. Franklin Roosevelt was a transformational President. The times demanded one and he delivered. In the process he saved the country from ruin and we emerged stronger.
Today calls for another transformational President. Barack Obama seems to have answered that call. He, like Roosevelt, enters the Oval Office with the economy in dire straits. He has laid out an agenda that seeks to not only solve the current crisis but also have America emerge stronger than ever and ready for the 21st century. The Employee Free Choice Act is a small part of that program. It is designed as part of an effort to keep the American worker at the forefront, not caught up in a race to the bottom.
As for my background you probably think I am some union hack. I am not a union member. I have a Management degree. For many years none other than The Wall Street Journal has ranked my alma mater as one of the top 50 Business Schools in the world.
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