Employee Free Choice - Card Check = FTW?

A leading Senator signaled yesterday that the Employee Free Choice Act may go through a revision that would remove the controversial "card check" provision and retain the rest of the bill.

U.S. Sen. Tom Harkin, who sponsored legislation to make it easier for workers to join unions, said the main provision of the proposal may have to be dropped to get the votes to pass it.

There isn’t enough support for a provision called card-check that would allow workers to bypass an election and form a union when a majority of them sign cards requesting one, Harkin said Monday in an interview.

“Compromises are going to be made,” said Harkin, an Iowa Democrat. “It probably won’t be card-check because too many people are opposed to it now.”

There are three elements to the Employee Free Choice Act. One, majority sign-up, has been turned into the entire bill. But there are new rules in the legislation about the timing and process of union elections, as well as stricter penalties for those who break the rules, particularly employers who intimidate their workers into voting against joining a union, or fire union organizers. T.A. Frank wrote about the importance of these measures a few months ago.

If a company illegally undermines a union campaign by threatening to fire workers, or by spying on them, or by promising to shut down the facility, the most serious penalty it can expect to face is being ordered to post notices in the workplace promising not to engage in such activities in the future. If a company illegally fires a worker, and the worker can somehow prove his or her case, the penalty is a requirement to reinstate the employee with back pay—minus whatever the employee has earned elsewhere in the meantime. And if a company negotiates in bad faith, it can perhaps expect an order from the NLRB to start negotiating in good faith. Such punishments are the equivalent of punishing shoplifters by asking them to put the merchandise back.

This is what lawmakers have sought to remedy in devising the Employee Free Choice Act. For all the controversy, EFCA is a surprisingly modest bill, with provisions aimed at strengthening existing labor laws rather than altering them substantively. Under EFCA, if Rite Aid had been found guilty of making illegal threats or of spying or of intimidation, it could have faced a monetary penalty—up to $20,000 per incident in cases of repeated violations. If Rite Aid had been found to have illegally fired a union supporter, it would have been required to pay not just the back wages, but three times the back wages. And if 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 [...]

The question, then, is how much of a fight the card check provision merits. And the answer is probably a little, but not a lot. What most undermines the secret-ballot process is that employers can violate the law in numerous ways without consequences. Under EFCA, however, every illegal action has the potential to be costly, so firings, spying, threats, or other forms of intimidation would be less likely. Also, there is an alternative way to preserve the secret ballot while guarding against company malfeasance: expedited elections. Under current law, months can go by between when NLRB announces the results of a card check vote and when a secret-ballot election is held. If, however, this campaign window were reduced to just a few days, employers would have less opportunity to intimidate union supporters into changing their minds.

My personal view is that the majority sign-up portion of the bill is inoffensive and makes sense - a recent study out of Illinois found no instances of union coercion in their state's majority sign-up law, compared to many thousands of instances of employer violations nationally under current law. Majority sign-up is a sensible application of the will of workers to organize. But Frank makes a compelling case that the other elements of the bill would aid union organizing efforts as well, and at this point, that's far better than no bill at all.

...Arlen Specter is now promising a compromise on Employee Free Choice that looks suspiciously like Harkin's proposal.

The Senate’s newest Democrat expressed optimism today that he could possibly work out a compromise this year with the primary sponsor of legislation easing union organizing rules.

“We’re going to work on it,” Pennsylvania’s Arlen Specter told reporters a week after leaving the Republican Party for the Democratic side of the aisle.

Specter announced earlier this year that he would vote against cloture on the so-called union card check bill (S 560) in its current form. He said today his views on the legislation remain unchanged but that he’s willing to work to find common ground with its sponsor, Sen. Tom Harkin, D-Iowa.

“I’m opposed to giving up the secret ballot or to mandatory arbitration as they are set forth in the bill,” he said. “But I do believe that labor law reform is past overdue.”

In other words, he wants card check without card check. And that might be okay, for the reasons I set out. But my kabuki antennae are at full blast. Specter comes up with an already-set "compromise," the unions grudgingly agree, they back Specter, and everyone praises everyone for finding the wise middle ground.