Retaliation

Though it’s pretty widely known, the Wal-Mart case (paywall) is worth recalling, if only because of the company’s immense number of employees.

Any congress with the votes to pass card check legislation would clearly also have the votes to tighten legislation against employer intimidation. But the idea that employer intimidation is a big problem and that card check is the most effective remedy is a ruse. The reason card-check advocates are in favor is clearly that it would enable union organizers to use peer-pressure and intimidation of various types (from threats of violence to threats of social exclusion) to induce workers to sign union cards. And I will say, this probably would be effective (in the same way that intimidation is an effective way to prevent workers from crossing picket lines).

The vote to join a union will has much more influential effect on a workers life than his vote for politicians, so it’s even more important for this union vote to be secret and, therefore, free of intimidation.

If employer intimidation is truly a problem, let’s fix that rather than create the opportunity for union intimidation.

As is unfortunately typical in the debate over EFCA, the arguments against display ignorance of the reality surrounding labor organizing. Two points bear emphasis:

1) The breadth and intensity of employer intimidation, coercion and retaliation has been amply documented.

2) Card check is nothing new, and has become an increasingly prominent feature of the labor organizing landscape in the past several years. Yet, opponents of EFCA have cited exactly no evidence in support of the claim that workers are subject to union coercion in card check campaigns.

Henry is exactly right — the opposition is all about stopping workers from exercising their lawful right to organize, and not about workplace democracy.

In what nation could the threat of weapons of mass destruction in the possession of a tinpot dictator in the middle of a desert nation be considered a slam-dunk certainty compelling immediate invasion, but “employer intimidation” in the homeland a far-fetched fantasy?

Thirty years ago I made the acquaintance of a mid-level manager who had been instructed in specific tactics to thwart unionization. Legions of lawyers have for decades been organized to defeat unions at every level, from the shop floor to popular discourse. Even within my own family, which was adamantly union thirty years ago, I sometimes have to raise my voice to make the point that unions can be good.

Brett, please sod off – it’s not like people here don’t know you.

Slocum: “If employer intimidation is truly a problem, let’s fix that rather than create the opportunity for union intimidation.”

When approaching a problem with laws, one tries to craft a solution which is easier to enforce down in the weeds. That’s card-check. It’s much, much more simpler to enforce that than to investigate and attempt to prosecute employer intimidation.

No, Steve, they’ve learned a lot. Even when things are crashing down around them, they’re still profiting from the war, both politically and financially.

If I had slocum’s confidence in the competence and goodwill of the government then I’d be with them in favouring cracking down on employer intimidation etc and maintaining things otherwise — basically I’m in favour of big government too. But experience suggests that the government does not act especially competently or neutrally in these matters. Basically, employers get a pass as long as they refrain from inflicting serious physical harms on employees who want to unionise.

slocum — I’d be in favour of that, sure. Not to be nit-picky, but it wouldn’t prevent arm twisting, just make it harder to figure out whose arm to twist (even when the actual voting is secret you shouldn’t underestimate the will or ability of both employers and unions to figure out who they need to target!)

Gee, if secret ballots are such great thing in themselves, how come employers don’t seem to mind card check for union decertification votes?

I’m in favor of secret ballots under ALL circumstances. Because whether it works agains management or the union under this circumstance or that, it’s always a protection for those who are doing the voting.

Somehow Brett, I don’t imagine you chastising the US Chamber of Commerce for their inconsistent stance on “protecting” workers in union voting.

It would be helpful if critics of EFCA would read the bill before decrying its terms.

Contrary to the anti-union misinformation that employers and their union-busting hired hands are propagating, EFCA does not eliminate secret ballots. It merely eliminates the bosses’ ability to demand an election.

Significantly, existing federal labor law does not require secret ballot representation elections. Rather, NLRA sec. 9(a) provides that “representatives designated or selected for the purposes of collective bargaining by the majority of employees . . . shall be the exclusive representative of all the employees.” Unions have been organizing workers, based on a showing of majority support, without elections, for decades. It was only in 1974, in Linden Lumber, that the Supreme Court held that an employer could insist on an NLRB-supervised election. That decision represents a questionable interpretation of the statute, and the card check provision of EFCA at least arguably does nothing more than restore the law to its original state.

In addition, card check recognition under EFCA would not be self-executing. The NLRB would have to investigate the petition; only if the NLRB were satisfied that the union had legitimately obtained authorization from a majority of the workers would the union be certified as bargaining representative. If there were evidence of intimidation or coercion by the union, the NLRB would reject the petition (not to mention that the union would be subject to unfair labor practice charges under the existing statute).

Unlike the well-documented widespread abuses by employers under the existing system, there is absolutely no evidence of widespread union abuses under a card check system (which, I repeat, already exists where unions are able to get the employer to agree), and thus no good reason to believe that the NLRB’s review process would provide insufficient protection. In contrast, there is plenty of evidence to suggest that, even with enhanced penalties and enforcement, anti-union employers will continue to use every means possible — lawful and unlawful — to subvert union organizing through secret ballot elections.

I wouldn’t hang too much on the opinion poll data myself. People want lots of things in the abstract that they aren’t actually willing to pay for. At the same time, even if very few people wanted to unionise, I think they should be able to without having to deal with employer intimidation.

I basically don’t think that employers should have the opportunity to argue against unionisation beyond the opportunity they have every day. Their everyday arguments range from the ability to make workers very uneasy about the propsect of them pulling their capital to treating the workers in a way that undermines the enthusiasm for conflict (well, in other words). I’ve seen a good number of organising efforts, and the people here who think employers are nice chaps always ready to play by the rules know different employers than the ones I’m seen. And different ones than Henry is reporting on.(I’ve know some absolutely delightful capitalists, too, even worked for one, but I don’t think even they really thought they were the norm).

Partly because individual freedom matters, and partly because there are temptations to abuse which are collectively self-defeating for the labour movement, it is important to devise systems that protect workers against intimidation by one another. So sure, figure out a way to protect workers from both sorts of intimidation. But don’t defend the status quo as superior on intimidation grounds.

Brett, you do realize that the USSR had secret ballots, yes?

I’ll join you in a second in saying that, all other things being equal, secret ballots are a good thing. In a better world, there’d be no need for legislation like EFCA. Of course, you can go on to say that in an even better one there’d be no need for unions or, going even further, private property. Which just goes to show we deal with the world we have, not the one we might want or wish to have at a later time.

In the world we live in that the reality-based community has to deal with, corporate and management intimidation is much broader and deeper than union intimidation. This statement is not a matter of opinion; it’s an empirical question, and the big disconnect between the percentage of workers in a union and those who want to be in a union is prima facie evidence that the statement is true. You have yet to provide evidence otherwise. Nor is there any reason to think that supporting card check cause a flood of union intimidation (cf Canada).

How, then, can we best support workplace democracy? We look at the institutions and institutional interests we have, and build from there. Management will always have a great deal more means to intimidate. The government will always be willing to look the other way when it does. Workers want to overcome both of these so that they might have a union. If you believe in workplace democracy–which is to say, the workers being able to form a union if the non-intimidated majority wants one–you clearly must support card check.

Now, if you oppose workplace democracy, that’s an altogether different story. But it’d be crass to accuse someone of that.

Brett, I’m in favor of the balance of terror. As a child, I lived close enough to NYC to wonder if I would be part of the crater if a Soviet missle targeted Manhattan. Yet here I am today, safe and sound.

I’ve watched more people than I can remember being fired in unionization struggles.
Finally, last year, I was suprised when two women were rehired- because the boss got in trouble with the powers that be in prolabor Massachusetts. I was glad when those women got their miserable, low paid jobs back; glad that they had someone intimidating on their side.

Brett, how do you reconcile your view that the secret ballot disallows all intimidation when far more workers want unions than are in unions? And the many documented instances of management intimidation?

I wouldn’t call it a balance of terror, either. Ideally the point is to pre-empt all attempts to intimidate, not to give each side a more equal leverage to intimidate. Needless to say, there will of course remain some intimidation, but there will be a much lower amount than exists currently. Again, we can look to evidentary arguments for this–cf Canada, whose unions aren’t exactly engaged in a perpetual war to crush dissent and murder defectors.

Secret ballots are in general a good institution to have, but they aren’t the be-all-and-end-all of democracy. Like I alluded to in my earlier post, the USSR had them, and CPSU apparatchiks were still quite able to intimidate people into voting as they wanted (well past the post-Stalin era, too, so it wasn’t the violent type of intimidation either). Why is it so hard to think that management has the means and the motive to do the same, and that other more effective institutions might better serve the purpose of workplace democracy?

BTW, I think I should underscore that I like having unions around. The threat of unionization drives management to treat employees much better than it would in the absence of that threat. I just happen to think that unions are much better as a threat, than as a reality. They have their downsides, and if the knowlege that unions are out there, and maybe an occasional organizing drive to keep that threat vivid, get you 90% of the benefit, the last 10% isn’t worth the dues, the inane work rules, lost wages during strikes, and all the other many costs of being in a union.

It’s an interesting question, I think: What percentage of the workforce being unionized is optimal from the perspective of the average worker? It certainly isn’t zero, but it sure as heck isn’t 100% either.

Barry, the existance of unions has a benefical effect on the behavior of management, so I’m glad they exist. I’m also glad chemotherapy exists, but that doesn’t mean I think everyone should undergo it. Sorry that my appreciation for unions is more nuanced than you want.

Geeze, take a course in logic. Just as thinking that the secret ballot deals with a particular kind of intimidation does not imply that I think it deals with ALL intimidation, thinking that the behavior of management matters does not, repeat, NOT, imply that I think only the behavior of management matters. This absolute deterimination to put the worst possible interpretation on my words, even if you have to ignore what I actually say, is getting tiresome.

I don’t see how card check v. secret ballot is relevant to the “if you unionize, we will close down this entire unit” employer intimidation — that threat could be used in either system. How is retaliation against employees, individually or collectively, easier under the secret ballot system, unless card check occurs secretly (i.e., without the employers knowledge)? But how likely is that? Indeed, the card check might harm unionization efforts if employees who prefer a union fail to sign because they fear retaliation if the organizinig effort fails on a challenge. Also, if card check becomes law, employers will simply “get their retaliation in first.”

Few card-check backers address the anti-deliberative aspects of card check. If an union organizer contacts 51 of 100 employees serially, and all 51 card check, and the cards go to NLRB, would not the 49 employees who never had a chance to participate or deliberate with their co-workers be cheated?

While on balance I think that unionization benefits employees, there are aspects of unionization that are worth having employees discuss. Consider dues as a percentage of salary. At NYU, adjuncts get a 3% raise under the collective contract, but dues are 1.15% of salary, so raises are effectively 1.8%. That might be better than what existed prior to unionization, but we don’t have data on that to be sure.

If the process of unionizing is not deliberative, why expect that union governance will be? After all, employers are going to continue to threaten during the bargaining stages, which is where the real payoff to the worker comes in.