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Employee Free Choice: Winning the Battle by Knowing Where the Lines are Drawn

Yesterday at the Senate Progressive Media Summit, I spoke to five freshmen Senators about their positions on the Employee Free Choice Act. Jeff Merkley, Jeanne Shaheen and Tom Udall have all signed on to the bill, and Roland Burris said he wasn’t yet familiar with it. Mark Udall is also a co-sponsor of the bill, but he said that even though he had voted for it in the House, he thought that it might have to be massaged in order to get through the Senate.

In order to understand Udall’s concerns, it’s important to understand that what the bill’s opponents say they object to is substantially different than what they actually object to.

T.A. Frank writes a well-intentioned but ultimately flawed piece in the Washington Monthly where he fails to make that distinction. He asserts that it’s possible to achieve a compromise on Employee Free Choice by removing what he calls the "card check" provision (using the right-wing term of art, rather than "majority sign-up"):

Republicans have called this a threat to liberty and democratic values. Democrats counter that it’s essential to protecting workers against employer coercion. But this squabble is a distraction. In reality, card check is the least important part of a very important bill.

The campaign mounted by Rick Berman, the Chamber of Commerce and other well-financed propagandists (who are frequently sanitized into "union watchdog groups" in the media) rests on the premise that the Employee Free Choice Act would do away with the "secret ballot." A "business-backed coalition" has launched an effort called "Save Our Secret Ballot," which urges state legislatures to amend their constitutions to "protect the secret ballot." Which would probably be more meaningful if the Employee Free Choice Act did away with the secret ballot, but, in fact, it doesn’t.

Until 35 years ago, workers could chose either secret ballot or majority sign-up ("card check") as a way to recognize a union to contractually represent them. But in 1974, the Supreme Court handed down a decision saying that an employer could refuse to acknowledge majority sign-up and demand a "secret ballot" election instead. The secret ballot system under the jurisdiction of the NLRB has been rife with abuse, as Frank’s article details well. The Employee Free Choice Act would simply put the choice about organizing method back in the hands of workers rather than the employer.

But the crusading efforts of the "Save Our Secret Ballot" crowd would have you believe that the Employee Free Choice Act would. . . well, return us to an era of lynching and slavery:

The use of a secret ballot in America was first deemed necessary to protect the voting rights of recently freed slaves after the Civil War. Voter intimidation during southern reconstruction was rampant, with African American first-time voters being threatened with physical violence, even lynching, based on how their publicly known ballots were cast.

The first President of the United States elected under the Australian ballot (secret ballot) was President Grover Cleveland in 1892. As Rep. Mark B. Cohen of Philadelphia, long active in election reform issues said, "The secret ballot guarantees that it is one’s private opinion that counts. Open ballots are not truly free for those whose preferences defy structures of power or friendship."

From the lynchings of freed American slaves who dared to vote for the first time, to the purple-stained thumbs of voters in newly freed countries, the right to a secret ballot has been won through the spilled blood of freedom-loving patriots. It is the hallmark of a democratic society that must never be abridged.

Overlook for a moment the breathless language. The most persuasive argument that opponents of the bill feel they have is a) a lie, and b) presumes that Newt Gingrich, Paul Weyrich and others are committed to protecting the rights of workers.

In other words, it’s all complete horseshit.

"Save the secret ballot" is a Luntzian exercise in focus-group tested hijacking of progressive language to sell something in complete contradiction to what they contend. But when business leaders are actually honest about what it is they object to the most, it’s the clause in the Employee Free Choice Act regarding an arbiter’s ability to impose a contract settlement.

As Frank notes, the bill would change that:

[I]f contract negotiations were being conducted without results, either party could seek federal mediation after ninety days. If, after thirty additional days, negotiations were still stalled, then an arbiter would be able to impose a contract settlement that would last two years. This would prevent employers (or employees) from running out the clock with bad-faith talks.

And that is what the Chamber and others find really unsettling. Don’t get me wrong — they’re not happy about majority sign-up — but the ability to interpret "good faith" negotiations as broadly as possible, and stall for time with no mechanism for resolution, has been a powerful tool in the union busting arsenal.

Read this article by Bruce Raynor, head of UNITE HERE, on their ten year effort to reach a contract with Goya Foods. Granted the biggest problem here was the highly politicized NLRB’s failure to act during the Bush years, but running out the clock is a powerful tool to use against people making ten or fifteen dollars an hour in forcing them to accept unfavorable terms. Business interests are not going to give it up easily

Frank goes on to argue that an arbiter’s ability to impose a settlement is more important than the "card check" provision so why is everyone getting so hung up on that? Just give up "card check" in order to appease the bill’s opponents, and everything will be hunky dory:

Perhaps the bill’s proponents in Congress intend to stand firm in their defense of the card check provision of EFCA. But if they strategically retreat, at just the right moment, like a matador lifting his red cape, will liberals accuse Democrats of selling out labor? Or will they realize that, with or without card check, EFCA will still accomplish what’s most needed—finally, at long last, restoring the rights of workers who seek to organize?

The article ends in a rallying cry for bipartisan compromise that presumes that the bill’s opponents mean what they say and will just fold up their tents and go home if majority sign-up is excised.

When pigs fly.

Which brings us back to Mark Udall. I pressed him on the compromises that the Senate was looking at (3:12 into the YouTube above):

HAMSHER: So what are the points that you think are most likely to be changed in a way that makes business happy?

UDALL: Well I think there are concerns certainly about the secret ballot, and how you card check in or out of a collective bargaining group, in other words form a union. And I know there are additional concerns about binding arbitration, and is there a way to promote a common agreement without strict binding arbitration provisions — could it be more open ended, you bring in additional process. But there are a lot of very smart people trying to understand how to get to "yes" and they don’t have a dog in this fight so it would be useful to draw them in.

HAMSHER: So you think that binding arbitration is more important to the business community…

UDALL: I certainly hear a lot of concern about binding arbitration. It forces a decision in a time frame…

HAMSHER: Ninety days, right?

UDALL: …which after all if you’re negotiating the use of time can be an effective tool and so I think there’s a legitimate point of view being expressed.

Yes, the use of time can be an effective negotiating tool. And unless there’s a resolution process in place, subject to abuse. . . which is why opponents of the bill object to any such provision, which in the abstract favors neither party. It simply limits the ability of employers to stall and force workers to compromise in order to get an agreement at all. Anyone who thinks that the Chamber is simply going to roll over on this point if majority sign-up goes away simply does not understand where the fulcrum is in these negotiations.

Over at the Prospect, Ezra Klein rejects Frank’s premise that "card check" doesn’t really matter, but concludes that "Labor cannot simply assume that the political system and the broader public are convinced of the problem. The issue isn’t passing card check. It’s ending corporate abuse and intimidation."

In fact, as Michael Whitney has written here before:

  • Nearly two-thirds (60%) of voters believe in even in these tough economic times, it is important to pass the Employee Free Choice Act, and nearly one-third (31%) of voters strongly believe it should be a priority for Congress.
  • When told about proposed legislation in Congress that would “make it easier for workers to form unions by allowing employees to be represented by a union when a majority of their coworkers sign cards saying they want to join that union,” voters favor the Employee Free Choice Act by nearly three to one (55% favor; 28% oppose).

I think labor is pretty clear-headed about the fact that if majority sign-up gets sacrificed by "friends" in a misguided push for consensus, opponents will simply view it as an initial victory in a much larger war.

In being so ready to throw majority sign-up under the bus, they are seriously misjudging where the battle lines lie in this particular fight.

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Jane Hamsher

Jane Hamsher

Jane is the founder of Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.
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