The Closet Moderate: EFCA

Tuesday, March 10, 2009


So, full disclosure, I used to work for SEIU. Below, I've excerpted a bit from the Rachel Maddow show explaining what the Employee Free Choice Act (EFCA) does:

There's a larger question embedded in the debate, which is--depending on your perspective--why do we need some un-American alternative to the secret ballot OR why doesn't the secret ballot work? To be pithy, here's why. In most cases, the workers who are trying to unionize are caught in an economic trap. They're working in shitty low-skill jobs. They are dependent on the income from those jobs. They are very replaceable. They probably don't have the flexibility to just pack up and go somewhere else in search of a new job.

So, if a manager comes to them and says "if you vote to unionize / participate in the election, I'll fire you" they're in a really tough situation. If working conditions are shitty, they either have to gamble their entire livelihood on the chance that their fellow workers will stick to the plan and vote to unionize, management's threats be damned. In other words, they're facing a classic prisoner's dilemma situation.

Now, theoretically they have legal recourse. They can appeal to the National Labor Relations Board (NLRB) claiming unfair labor practices. There are a couple of problems with this route, though. First of all, the NLRB is appointed by the President and if the administration is hostile to organized labor (i.e. Republican) then those grievances are unlikely to get more than a cursory hearing. Secondarily, it's actually very hard to prove that someone said something. Oftentimes what happens is that a statement is made to a worker and it spreads throughout the workforce, producing a chilling effect without a pattern of intimidation. Finally, the penalties for violating the National Labor Relations Act are so miniscule that for the company, it's almost always worth taking the chance.

So, what exactly does EFCA do to remedy this situation? First of all--and this is the main reason labor is pushing so hard for its passage--it makes it so that the workers choose whether to use the secret ballot or card check. Currently, the employer decides which method to pursue. Furthermore, it requires the employer to recognize the union if a majority of workers decide to unionize (through whichever method) and guarantees them a contract. If the employer and union cannot agree to a contract within 3 months EFCA mandates third-party mediation. Finally, it increases the penalties for coercive practices and intimidation. Really, it's the first point that's the most important. It's standard union practice to visit workers away from the site of employment. In some cases, being seen with a union organizer is grounds for termination and card check is easily performed off-site.


Herodotus said...

Dear god that woman sucks. All the abrasiveness of Keith Oberman without the conviction in her voice and the snarkiness of John Stewart without the funny. And she looks and sounds like a dude. She could have made her point in a way that did not make me want to punch her.

Plus, employees should be as free to unionize and as employers are free to fire them. If the union is truly that useful to both parties, it will work. Otherwise, it tips the scale in favor of unproductive workers.

Statler said...

Yeah, that would work in a world without petty scumbag assholes. Tragically, that's not the world we live in, workers should be protected from random acts of jackassery.

Statler said...

Or, put more clearly, if these decisions were made rationally, I'd have no problem with your proposed situation. Unfortunately, there's a lot of irrationality built into the hiring/firing process and there should be some protection for vulnerable people built into it as well.

Silent Cal said...

That video combines condescension, socialism, and schoolmarm-iness in a way I thought we'd managed to avoid when Hillary lost the primaries.

But as to the substance of this blog, I'm still confused about the "choice" involved. You, Statler, say that "the workers choose whether to use the secret ballot or card check". O RLY? How do they choose? Which workers do the choosing? I suppose that if the results of a secret ballot were that the employees would prefer not to use a ballot, then I could not call the process undemocratic as such, but any other method of making that choice leaves itself open to the charge.

Ms. Maddow suggests I "read the bill," while herself referring to the text of the website of one of the bill's co-sponsors. I did one better, and read the actual bill. Its text is here:

Now, I'm not a very good lawyer, but the way I read Section 2 of that act is to say that the "workers" here means "an employee or group of employees or any individual or labor organization acting in their behalf". So, if some union spy in the workforce (Herodotus and Szod know the guy I'm thinking of) alleges that the employees want a union and have signed cards, then card check is in effect.

Some choice.

Further, the idea that employee intimidation runs only one way in these fights is either disingenuous or naive.

Statler said...

I think we can agree that "don't participate in this election or you lose your job" is a more effective threat than "sign this card or you'll..." what exactly?

Silent Cal said...

Employers threaten to stop paying you money out of their pockets, which is their natural right. Union thugs threaten to beat your ass, which is not. But whatever your ideas of the rights of man, we must agree that the secret ballot prevents enforcement of these threats.

Statler said...

Uh, it turns out it's not their natural right to lay you off because you're brown. Again, you're assuming these decisions are being made for sound business reasons--the traditional rightist dodge--while framing all union activity as illegitimate because it interferes with business flexibility.

There are a few points to be made here:

First of all, when you're talking about security contractors or facilities services, you're not really talking about ruining the American economy.

And when talking about the management at these companies, you're not talking about Warren Buffet. A lot of the time, you're dealing with petty people who derive satisfaction from tormenting others, but who are protected by their position.

But look, if your baseline position is "business is always right, it's okay to fire someone for whatever reason" there's not much of an argument to be had here. Also, union work is really not about threatening to beat people up (and even if it were, most reps would rather take a bat to the management) but rather more sissified forms of agitation: sitting in, marching, 60's hippie shit.

And that--as a form of targeted protest--usually happens only after negotiations have failed.

Silent Cal said...

Whether one man has a claim on another's resources is a thorny question, one that won't be solved in this comment thread.

But you've ignored my larger point: EFCA does, despite your protestations, effectively eliminate the secret ballot in unionizing. Say not?

Silent Cal said...

Six years later, and Statler still hasn't answered my question, but Herodotus has gone from Maddow-loather to Maddow-lover. Progress?