Card Check Vanishes

Conservative Democrats pulled out the card check provisions from the Employee Free Choice Act, leaving in place a weakened bill that is still being negotiated.

The so-called card-check provision — which senators decided to scrap to help secure a filibuster-proof 60 votes — would have required employers to recognize a union as soon as a majority of workers signed cards saying they wanted a union. Currently, employers can insist on a secret-ballot election, a higher hurdle for unions.

In its place, several Senate and labor officials said, the revised bill would require shorter unionization campaigns and faster elections.

While disappointed with the failure of card check, union leaders argued this would still be an important victory because it would give companies less time to press workers to vote against unionizing [...]

Though some details remain to be worked out, under the expected revisions, union elections would have to be held within five or 10 days after 30 percent of workers signed cards favoring having a union. Currently, the campaigns often run two months.

To further address labor’s concerns that the election process is tilted in favor of employers, key senators are considering several measures. One would require employers to give union organizers access to company property. Another would bar employers from requiring workers to attend anti-union sessions that labor supporters deride as “captive audience meetings.”

These provisions will only work if there are stiff, measurable penalties for breaking the law. Right now those penalties are weak and unenforced, and even if they're hit with fines employers consider it the cost of doing business. If those fines are high enough to discourage intimidation and harrassment, on both sides by the way, then we might be able to have a level playing field with snap elections and binding arbitration if the election is successful, so that the employer can just refuse to sign a contract forever. I'm upset about the loss of card check, but without the anti-intimidation provisions it really won't matter. Right now the union election system is broken - the "secret ballot" language might have beaten card check, so "right to vote" language needs to ensure a level playing field. If that happens, this bill would expand union membership in America and protect worker's right to unionize.

...Andy Stern responds by vowing that there will be a vote on majority signup, whether in the bill or by amendment. And there should be. Labor needs to know who their friends are in Congress before they spend a kajillion dollars on them getting them elected.

Broken News: DiFi Doesn't Support The Same Thing Today She Didn't Support Yesterday

If Dianne Feinstein really was backing away from supporting the Employee Free Choice Act, I'd be the first to blast her. But she never supported it in the 111th Congress to begin with. She remains the only Democratic member of the California delegation, in the House or Senate, not to co-sponsor the bill. And she signaled her support for a compromise bill, which has a kind of "early voting" card check where workers mail in their cards to the NLRB, and if 50% return they get a union, three weeks ago. So some reporter got fooled today by a Chamber of Commerce press release suggesting that DiFi "pulled her support" of the Employee Free Choice Act in a meeting with CoC folks from the Santa Clarita Valley.

Yeah, we get it. You want to break news. But at bare minimum, one Jon Dell should have:

Looked up the meaning of the word "cloture," which apparently he does not know, since Feinstein's vote for the bill isn't needed for its passage

Asked Feinstein for comment instead of taking the word of an organization spending millions of dollars to defeat the bill, and

Done a simple Google search to determine Feinstein's history with the bill, and discovered that she offered up her own compromise three weeks ago:

[Diane Feinstein's] proposal would replace the card-check provision, which would allow workers to unionize if a majority signed authorization cards and strip a company's ability to demand a secret ballot election. "It's a secret ballot that would be mailed in ... just like an absentee ballot. The individual could take it home and mail it in," Feinstein said. If a majority mailed the ballots to the National Labor Relations Board, the NLRB would recognize the union.

What about that? Did she say anything about her own "compromise" bill? Well, we don't know, because a bunch of "breathless" delegates from the Santa Clarita Chamber of Commerce who know nothing about the history of the bill or Feinstein's position apparently didn't ask her about it, they just told their story to an equally incurious reporter who quickly decided that they "broke national news" in a "major turn of events."

This doesn't take Feinstein off the hook or anything - she ought to support the perfectly reasonable provisions of the bill as they stand right now. The California Labor Federation is engaging in a two-day hunger strike in front of her San Francisco office (1 Post Street) to bring attention to DiFi's position on Employee Free Choice. But this "breaking news" is, um, broken.

Sausage Making On Employee Free Choice

Yesterday Arlen Specter announced that a compromise was in the works for the Employee Free Choice Act.

Sen. Arlen Specter said Thursday the "prospects are pretty good" for a compromise on legislation making it easier for workers to form unions.

Specter had come out against the bill in March, disappointing labor leaders. They had hoped he would be the crucial 60th vote needed to overcome an expected GOP filibuster of the Employee Free Choice Act.

The Pennsylvania senator has since switched from the Republican Party to the Democratic Party, and he said he's been meeting with labor leaders and fellow senators in hopes of coming up with a compromise he could support.

President Barack Obama also said Thursday that he hoped a compromise could be worked out that would "get enough votes to pass the bill."

The good news here is that Specter realizes he needs to protect his left flank, lest he receive a primary challenge. American Rights at Work released an ad hammering him this week, and the unions have made it pretty clear that they will condition their support for Specter based on his record.

The bad news is that we have no idea what form this compromise will take. Specter has signaled that he opposes both the majority sign-up and the 120-day arbitration portions of the bill. The second part doesn't get mentioned much, but it's just as important, as Harold Meyerson noted in the Washington Post:

If our nation was governed by business's version of democratic choice, we would hold elections to determine the winner, but nearly half the time the incumbent would remain in power even if he lost.

In its campaign to derail the Employee Free Choice Act (EFCA), business has fearlessly depicted itself as the defender of elections and the secret ballot as well as the foe of the dread "card check" -- the process, championed by unions and included within EFCA, that would allow workers to sign union affiliation cards rather than compelling them to go through a ratification election in which harassment and firings of workers are all too common.

But the kind of democratic choice that business favors is choice without consequence -- a position made clear by its opposition to the other key component of EFCA: binding arbitration between company and union if they've been unable to agree on a contract within 120 days of a union winning the election. A study of first-contract negotiations by John-Paul Ferguson and Thomas A. Kochan of MIT's Sloan School of Management makes clear why such arbitration is needed. After surveying 22,000 unionization campaigns between 1999 and 2004, the authors found that even after a majority of workers voted for a union, they actually reached a contractual agreement with management (which is currently under no legal obligation to come to an agreement) only 56 percent of the time.

Heads, management wins. Tails, the employees lose.

Specter and others have proposed modifications to both majority sign-up and 120-day arbitration. There's Dianne Feinstein's "vote-by-mail" sign-up, where workers send in cards to the National Labor Relations Board and get their union when half of the workplace sends them in. And Specter has promoted a "last best offer" arbitration, with mediation after each side sends in their proposal.

We'll see if these are amenable to the unions. My hope is that everyone understands that the current system is irreparably broken, and we need something to change the ability of employers to fight tooth and nail against unionization, even after the workplace makes their will known through a hard-fought election. In the end, this is about worker rights.

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.

Plumbered

When you watch this, keep in mind that Republicans at the highest levels thought it was a great idea to elevate Joe The Plumber to a position of authority. In fact, he addressed a House Republican conference.



I like this part too:

Meanwhile, the Patriot News reports that union members who were bussed to the rally jeered and heckled Mr. Plumber.

“Rat! Rat! Rat!” some shouted. Another yelled: “Real plumbers are for card check!”

According to the Patriot News, Mr. Plumber admitted at one point that he hadn’t read the bill.

The tough time Mr. Plumber endured was apparently too much for him. He was scheduled to appear at a subsequent rally against EFCA in Philadelphia, but according to the SEIU, which had several organizers on the scene, he was a no-show.

It's strange that no reporter has yet written about the end of the two-party system in America.

The So-Called Compromise

Ambinder had rumblings last night, and now there's a clear split among employers, with Starbucks, Costco and Whole Foods proposing an alternative organizing bill to supplant the Employee Free Choice Act.

As business and labor gird for battle over legislation that would make it easier for workers to organize, the debate could be transformed by a "third way" proposed by three companies that like to project a progressive image -- Costco, Starbucks and Whole Foods.

Like other businesses, the three companies are opposed to two of the Employee Free Choice Act's components -- a provision that would allow workers to form a union if a majority sign pro-union cards, without having to hold a secret ballot election, and one that would impose binding arbitration when employers and unions fail to reach a contract after 120 days.

But the companies' CEOs say that they also recognize that just opposing the legislation, dubbed "card-check," is not enough, because of the widespread perception in Democrat-dominated Washington that there is not a level playing field between labor and business. So the CEOs have come up with ideas they hope will form the basis of new legislation.

Their proposal would maintain management's right to demand a secret ballot election, and would leave out binding arbitration. The proposal would keep the third main element of the "card-check" bill -- toughening the penalties for companies that retaliate against workers before union elections or refuse to engage in collective bargaining. But it would also toughen penalties for union violations, and it would make it easier for businesses to call elections to try to decertify a union.

To address labor's concern that businesses intimidate workers before elections, it would set a fixed period in which an election must be held, limiting the delays that give employers time to exert pressure. The proposal does not specify what the time period should be.

The proposal would also provide unions equal access to workers before elections -- for instance, by allowing organizers to address workers on a lunch break in the company cafeteria just as management can.

Um. Would this improve upon current law? Probably, although the decertification provision is probably ripe for abuse. Does it come anywhere near what is needed to fix the broken bargaining process? No, in a word. Without binding arbitration on contracts, and without the option for majority sign-up, you keep labor in a box, and keep the playing field tilted toward management. This statement from AFL-CIO Government Affairs Director Bill Samuel reflects labor's concern:

The Employee Free Choice Act is about protecting the fundamental freedom of workers to bargain with their employers for a better life and to join a union without corporate interference and harassment.

The proposal being circulated by these companies falls short of meeting these standards.

We are open to discussing the legislation with parties who are legitimately concerned with protecting workers.  However, a proposal coming from corporations, some of whom have their own history of violating workers' rights, is simply not an alternative that lives up to giving workers back the freedom to form unions.

Of particular concern is the removal of majority sign up – which exists under current law - and the removal of the arbitration provisions. Removing the arbitration provisions will allow companies to continue to stall and delay and refuse to negotiate a contract in good faith.

That said, there are positive and negative elements to this from the perspective of politics.

The positive is the perceived split among business. Anti-union forces oppose this deal, and the cracks among businesses can be exploited.

However, these companies, particularly Starbucks and Whole Foods, are no friends of labor. The NLRB cited Starbucks for illegally firing three union organizer baristas in New York City and prohibiting employees to discuss union issues at work. Whole Foods' CEO compared unions to herpes: "It doesn't kill you, but it's unpleasant and inconvenient and it stops a lot of people from becoming your lover." These are not good-faith negotiating partners.

And the bigger negative is that this now becomes the "sensible centrist" alternative, the Solomonic way, that the bipartisan fetishists can push forward and consider themselves beloved by all rational people. Just look who brokered this deal:

The effort is being led in Washington by Lanny Davis, a former special counsel to President Clinton. Davis said he has approached about 20 Senate offices and gotten an overwhelmingly encouraging response. The Employee Free Choice Act has majority support in both chambers, but there are signs it may have trouble getting a filibuster-proof 60 votes in the Senate, where several centrist Democrats who previously supporting it are expressing reservations.

Sen. Mark Pryor (D-Ark.), a centrist ambivalent about card-check, praised the companies' proposal. "I appreciate good faith effort that could result in a reasonable compromise on what has become a highly polarizing matter," he said.

You can just see where this can go, ending in a half-measure that will fail to solve the problem. It's the old "Washington compromise" all over again. And only workers get screwed, so who cares, right?

Monster Chiller Horror Theater

Apparently, allowing workers making something approaching the minimum wage the ability to collectively bargain instead of having their rights trampled by management, their organizers fired, their workplaces shut down rather than stay a union shop, and their colleagues intimidated is the central threat to the very fabric of American life. Hearing these landed gentry talk using the language of end-times apocalypse is pretty nuts.



"Radical Islam and Employee Free Choice are the two fundamental threats to society" is my personal favorite.

Congress could take up this bill as early as next week, and clearly it's going to provoke a lot of opposition. But the media-hyped language of "smackdown" and "nuclear war" and "Armageddon" obscures the point - all this act would do is enforce the violations to labor law made routinely by management, and give employees the choice to decide how to have an election for unionization rather than having one imposed upon them. It's only "Armageddon" if you're absurdly wealthy and you want to and you want to preserve the extreme inequality, that is partly to blame for this economic crisis, far into the future. It signals the end times, all right, but only for this new Gilded Age in which we live.

The California Report

There are a bunch of things that I wanted to post about that I might as well highlight in one post, kind of like when Asia recruited members of Yes, King Crimson, and Uriah Heep to create a "supergroup":

• BeDevine notes that yet another gender-neutral marriage bill has passed the Legislature, and once again Arnold Schwarzenegger has vowed to veto it because "the people have already spoken on that issue."  Apparently the people don't vote for their own representatives in the state legislature.  And at what point does the statute of limitations run out on referring to a ballot measure from 2000?

• Senator Loewenthal has pulled back the container fee bill that would have charged importers a $30 fee on each cargo container to go towards fighting pollution at the ports.  This will go into negotiation and probably be passed in some form in 2008.  Hopefully it'll be a form that will still have some teeth.

• Dan Weintraub makes the fallacious argument that the United Farm Workers are somehow betraying their principles by asking for the ability to form a union after a majority of employees sign cards endorsing it.  He thinks that there's no intimidation in a secret ballot election, apparently ignoring decades of union busting, threats, and workplace closures that have arisen from attempts to unionize.

• As mentioned in the Quickies, the CA Hospital Association has agreed to a tax in themselves... sort of.  In exchange, they would receive money back to them based on how many poor people they treat.  Most hospitals would actually make money on the deal.  It's also hard to see how this would do anything to fix our state's strained emergency rooms, which presumably is where these poor people would be encouraged to go for treatment.

• Also in the Quickies is some good news on the enviroment, as new CARB chief Mary Nichols has set some pretty strong targets for emissions cuts.  They're first steps but they presage positive developments in the future.

• Finally, the Teamsters waged a successful protest at the California-Mexico border against the Bush Administration effort to allow 100 Mexican trucking companies to deliver goods anywhere in the United States.  This will not only damage our environment and public safety by opening up the roads to unsafe Mexican trucks, it undermines American job security for one of the few good union industries left to our working class.  The goal is to marginalize unionized truckers, pure and simple.  Matt Stoller thinks this could be the next "Dubai ports deal" if the word gets out about it.