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Union organizing in the U.S. - the challenges

Unionist
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Joined: Dec 11 2005

I thought it might be of interest to have a thread comparing some of the legal and other challenges facing union organizing drives in the U.S. with those in Canada.

I'm linking to a story about a particular drive in California. It also describes the "Employee Free Choice Act" now working its way through Congress. Despite the anti-union-sounding name (remember "right to work" states?), it's apparently the opposite. Maybe they packaged it to sound more libertarian.

It looks as if the main reform would be to introduce access to "first-contract arbitration". We have that in most jurisdictions in Canada, but it's not always easy to access. Its aim is to address one of the chief fault lines in organizing a new workplace - management's attempt to break the new union within the first 12 months by simply doing "surface bargaining" rather than trying in good faith to reach a first collective agreement.

Anyway, here's the rather lengthy article:

Rite Aid Workers Stymied by Weak Labor Law

 


Comments

Bärlüer
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First-contract arbitration is indeed an important feature of the Employee Free Choice Act, but by far the most important change the EFCA would introduce is certification by the National Labor Relations Board if a majority of the bargaining unit employees have signed cards. (Right now, an employer can disregard the fact that a majority of cards have been signed and demand a secret ballot vote.)

Unionist
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Thanks, Bärlüer, you're right, that's far more important. Don't know how I missed that feature - one which is under attack in various Canadian jurisdictions, in fact.

 


NorthReport
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I don't like the looks of this, hopefully however this is just the WSJ's version which is as usual is full of anti-union propaganda.

Three Companies to Back Proposal on Union Bill

http://online.wsj.com/article/SB123759435215100809.html

Three big retailers are expected to back an alternative proposal next week on a hotly contested bill that would make it easier to unionize workplaces, a move some experts said would bolster the legislation's chance of passage.

Costco Wholesale Corp., Starbucks Corp. and Whole Foods Market Inc. are supporting the alternative proposal, according to someone familiar with the effort. Ray Krupin, a management labor lawyer in Washington said the most likely compromise would allow employees to unionize if 70% of them sign union-authorization cards, as opposed to 50% as currently proposed in the Employee Free Choice Act.

On Saturday, a person close to the discussions denied that the proposal backed by the three companies included a plan to let unions organize workers if 70% sign cards.

It's unclear whether the proposal addresses a thorny section of the bill that would have a government arbitrator draw up a contract if unions and companies can't agree to terms within 120 days.

"We have had conversations with like-minded companies and are open to exploring alternative solutions to the legislation as it is currently written," said Deb Trevino, a spokeswoman for Starbucks.


Jacob Richter
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Joined: Oct 19 2008
It's the 70-50-30 proposal; if only 50% sign, a secret ballot would be required within 15 days and not the current 42, and if only 30% sign, companies would have to allow union organizers to visit and press with unionization efforts.

NorthReport
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NorthReport
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WSJ: Employee Free Choice Does NOT Eliminate Secret Ballots

http://blog.aflcio.org/2009/03/20/wsj-employee-free-choice-does-not-eliminate-secret-ballots/

A striking concession today from the hard-right, corporate-friendly editorial board of the Wall Street Journal: In the midst of an angry editorial against the Employee Free Choice Act, the authors undermine years of messaging by anti-worker corporate groups by acknowledging:

The bill doesn’t remove the secret ballot option from the National Labor Relations Act….

However, the Journal writes erroneously that the bill makes secret ballots a “dead letter.” But as we’ve pointed out many times, the Employee Free Choice Act puts the choice of majority sign-up or a National Labor Relations Board (NLRB) election in the hands of the workers who want to form a union, rather than leaving workers at the mercy of management in that decision.

 

This acknowledgment is a big turnaround from the Journal’s frequent practice—detailed here by Think Progress—of making the “eliminate secret ballots” claim.

So there you have it: the Wall Street Journal editorial board says that the Employee Free Choice Act won’t eliminate secret ballots. Those who continue to try and contend that it does are trying to mislead the public and contradicting what the bill’s opponents know is true.

Not that secret ballots are sacrosanct for opponents of the Employee Free Choice Act when it serves their own interests. In fact, the Republican Party bylaws forbid secret ballot votes on most matters before the party’s national committee, notes Greg Sargent of The Plum Line blog.

The Journal’s ed board demonstrates that opponents of the Employee Free Choice Act are not against it because of their deep sense of respect for workers’ rights or for fairness. They oppose it because it would level the playing field and end corporate dominance over the process by which workers form unions. It would give workers the bargaining power they need to get a fair share of the value they create and would take the decision about how to form unions out of bosses’ hands and give it to workers.

Despite the Journal editorial board’s opposition to the Employee Free Choice Act, apparently the staff decided it can’t keep up the act anymore. Today we herald the beginning of the end for the myth of “eliminating the secret ballot.”


KenS
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Joined: Aug 6 2001

On the EFCA from In These Times

 

Ready to Rumble

http://www.inthesetimes.com/article/4191/ready_to_rumble/ 

 

and a later blog article [shorter version that ran in mag, URLbelow]: 

Union Allies Fight Against GOP “Meltdown Lobby” With IRS Complaint, Grassroots Campaigns

 http://www.theittlist.com/site/ittlist/ind/5356/union_allies_fight_against_gop_meltdown_lobby_with_irs_complaint_grassroots/

 

 

http://www.inthesetimes.com/article/4271/the_battle_is_joined/

DrConway
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Joined: May 6 2001

It's always been the law that a union is automatically recognized if the employer does a card check and discovers a majority. But because employers know this, almost no-one will ever accept the union cards as proof of a majority, which is why union busters make much of this 'secret ballot' business; current law, because it does not require holding a poll within a very short period of time, allows for almost unlimited sabotaging of the otherwise-ostensibly 'fair' secret ballot after 30 or 60 days of a relentless war on the union, financed by the inexhaustible war chests of the panicky owners/managers of the business.

If the law required a secret ballot within five days of the employer declining the card check, it would destroy the entire union-busting industry since all their tricks would be useless.

http://www.archive.org/stream/unionguy00founrich/unionguy00founrich_djvu.txt

Have a gander at that book from 1949, by the way.

 


josh
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Joined: Aug 5 2002

Well EFCA could very well be dead, at least for this session of congress because a key senator, who's perhaps the biggest two-faced phony in Washington, has changed his position.  Making it extremely difficult for senate Democrats to get the 60 votes they need to break a Republican filibuster.

http://www.nytimes.com/2009/03/25/us/politics/25specter.html

You can add the undemocratic senate as one of the biggest challenges to union organizing in the U.S.

 


DrConway
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So you're telling me not one of those 40-some Republicans will budge on this? I wonder just how much money the NAM showered on them to convince them not to vote for EFCA.

KenS
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Joined: Aug 6 2001

I have not heard a lot about this yet.

 Its not a good sign that Specter backs out.

But I'm pretty sure there is potential for breaking the bill up and getting it through in pieces.

Also, Obama has not said anything yet. He can't go spending his political capital on everything he wants to push by reluctatnt Republicans... but when he does, there is a price for every Senator who demurrs.

 I think those possibilities are covered in the February "Ready to Rumble" article I linked above. Maybe also/or in one of the versions of the other article.


Bärlüer
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DrConway wrote:

It's always been the law that a union is automatically recognized if the employer does a card check and discovers a majority.

This is probably not the most accurate depiction of the process.

Since the employers are currently given pretty much complete discretion in challenging whether a majority has been attained through the collection of cards (by requesting a secret ballot election from the NLRB), the majority status is never confirmed—and thus, the "recognition" of the union as the exclusive representative of the employees is never obtained—until the election settles the issue.

Interestingly, this wasn't always the case. From 1949 to 1966, the "Joy Silk" doctrine applied, which required that the employer show "good faith doubt" as to the majority status to obtain an election in the face of a majority of cards having been filed with the NLRB. In 1966, the Aaron Brothers case changed the situation drastically: the employer no longer had to provide reasons to reject a bargaining demand (that is, to ask for an election). This is still the governing regime:

Quote:
Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct; he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple "no comment" to the union.
(NLRB v. Gissel Packing Co.)

The EFCA would change the regime by preventing the NLRB from holding an election when it has determined that a majority of employees has signed valid authorizations. (It would do this by adding a sixth provision to sec. 9(c)(1) of the NLRA.)


KenS
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Joined: Aug 6 2001

From that In These Times article linked above: 

Quote:

In December, a Peter Hart poll found that 73 percent of the public—including 37 percent who felt strongly—favored the Employee Free Choice Act after hearing its three provisions. This poll hints at what education could mean for public support of EFCA.

Given that, and the mood of the times making public support of the principles even more likely, it would be an interesting dynamic to let the EFCA bill go to filibuster in the Senate, and park there for a while.... while Obama simly points out the obvious benefits of the bill for all.

 The vast majority of Americans probably don't even know about the de facto 'super-majority' requirement of 60 Senate votes to pass legislation the Republicans don't want. And they aren't going to like it when they see it.

I have no idea if this is an end game people have in mind. Whether or not this particular one- all of them entail allies marshalling public support and pushing for a test.


DrConway
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Fire up the letter writing. The more the stinking Repubs realize they're going to get steamrollered in 2010 if they keep stonewalling the more they'll roll over for the Dems to try and hang onto seats instead of losing even more.

 


stop raiding
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If the EFCA squeaks through in the US it may lead to increased pressure on provinces like Ontario to introduce card-check legislation.

KenS
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Joined: Aug 6 2001

Not looking good.

Now Senator Feinstein of California- one of the sponsors is backing away- citing the current economic climate.

'Card check' bill loses key supporters

http://www.latimes.com/news/nationworld/nation/la-na-card-check28-2009mar28,0,4048410.story

So they're talking half a loaf now.

Quote:

Last week, the executives of three companies known for their progressive images -- Costco, Starbucks and Whole Foods -- offered what they called a "third way." It would eliminate the binding arbitration provision and preserve management's right to demand a secret-ballot election when workers seek to form bargaining units. But it would also shorten the period management would have to campaign against unionization.

Fortunately, not only union supporters are taking with a grain of salt the 'progressive images' of that noorious union busting posse.

Even with a vastly shortened campaign period, the secret ballot is just a no go. And even some big biz groupd have said as much.

But the "compromise" spin will still hang on it.

We shall see.


Bärlüer
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Joined: Aug 20 2007

So, about that EFCA "compromise"... Here is a recap of some of the events that have punctuated the life of the EFCA.

But first, some context. The biggest hurdle is to get to an actual vote on the bill—that is, get the 60 votes for cloture of debate (avoid the filibuster).

With Specter's recent switch, Dems now have 59 members (still waiting on Al Franken to be seated, which will get them an additional vote). However, some of the most conservative Dem senators might not only NOT vote for EFCA but might ALSO vote no on cloture (folks like Nelson, Landrieu, Lincoln). On the other side, some Repub senators *might* be amenable to vote yes on cloture, even though they would not ultimately vote in favor of the bill (Specter, Snowe, Collins).

So, what has happened recently?

Specter (originally a co-sponsor of EFCA...), in serious trouble for his upcoming Republican primary, panders to the right and says he doesn't support EFCA. More importantly, he also says he will not vote for cloture (i.e., he will filibuster the bill).

In an attempt to save his ass, Specter switches to the Dems.

After making the switch, he makes public declarations saying he still wouldn't support EFCA (among other items of the Democratic agenda) and still wouldn't vote for cloture.

Harkin, apparently the go-to Dem senator for the EFCA, says that the votes aren't there for card-check. He is attempting to craft a compromise to get the votes (at least on cloture) of folks like Specter and the other usual suspects (Nelson, Landrieu, Lincoln). He stated that the new version would not "compromise core principles). But... it appears now that card check and binding arbitration for the first collective agreement would be out of this work-in-progress compromise. These were *by far* the two most important aspects of the EFCA.

So here are some of the latest news/rumors about the compromise:

The replacement of card check? Apparently, a 21-day deadline for secret-ballot voting.

The replacement for binding arbitration of first collective agreement? Apparently, mediation. Not clear if binding arbitration would be available if the mediation fails...


KenS
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Joined: Aug 6 2001

The mediation will fail. So there must be some kind of forced process for the employer, even if it is [presumably] less forceful than binding arbitration.


stop raiding
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Within the beltway there is some speculation that Specter will change his mind. The Dems are threatening to not support him in the primary if he doesn't do an about face on the EFCA. Also there is hope that a couple of republicans can be turned. Alaska's Murkowski may support it if another republican or two will come on side. All rumour and speculation but until the vote occurs it's all speculative.


KenS
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Joined: Aug 6 2001
Labor unions find themselves card-checkmated

http://www.latimes.com/news/la-na-unions19-2009may19,0,7360567.story?track=ntothtm

"We were outspent, outhustled and outorganized," said one chagrined union advisor who was not authorized to speak by name.

"The legislation is severely challenged," said John Wilhelm, hospitality president of Unite Here -- the textile, hotel and culinary workers' union. "The unified business community has been so strident about the issue, they have effectively achieved solidarity among Republican senators."

The labor movement, somewhat divided, he said, has let Democratic support drift away.
 

 


Bärlüer
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Joined: Aug 20 2007

As expected (see my earlier post in this thread), card check has been removed from EFCA.

From the article:

Quote:
The abandonment of card check was another example of the power of moderate Democrats to constrain their party’s more liberal legislative efforts.

Now: quid of binding arbitration for first agreement? Will it too be gutted?

 


Unionist
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Joined: Dec 11 2005

The NY Times article continues to claim that Obama supports card check, but fails to explain his not lifting a finger or a voice. You don't have to be a genius to figure out that when Obama welcomed Specter, the deed was done (if not before).

The Atlantic comes closer:

Quote:
The failure of card check, now known as "majority signup," speaks as much to the political priorities of the Obama administration as it does the power of moderate Democrats, most of whom opposed card check for fear of alienating employers in their mostly non-union districts. As of a few months ago, labor strategists could accurately claim as many as 58 votes in the Senate, just two shy of the magic 60 needed to avoid a filibuster. But even as President Obama and Vice President Biden dutifully praised card check in speeches, the White House did not put any political muscle into passing it, and they very clearly indicated to Congressional leaders that its passage was less important than health care, its economic stimulus efforts, its financial industry regulation proposals, and -- did we mention, health care, where the White House still believes that engagement with the private sector will push health care over the top in the end. 


Bärlüer
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I guess that, in some circumstances, the case could be made that it's best to leave it to the legislative branch to fight the battle. People have raised this issue in relation to the failure of health care reform in 1994. (I must say I don't feel knowledgeable enough about those events to evaluate the soundness of the argument in that case. It could very well be that the executive branch just plain sucked at it at the time...)

Not too long ago, "technocratic liberal" Ezra Klein brought up that Clinton (counter-)example and made the case that Obama shouldn't get involved now in the current health care battle. (He did say that he should jump in later, possibly in a forceful manner.) I disagree with him and agree with you, both in relation to EFCA and health care reform. I think it would have been helpful to have Obama, early on, make "frame-defining" and "bullshit-talking-points-neutralizing" statements establishing that:

a) EFCA is not about creating "new" rights/processes for unions but actually about repealing the judicially-created Aaron Brothers doctrine (see my post earlier in that thread) that took away rights/processes out of the hands of unions (sorry about all those italics...) (but said in a sexier way, obviously...);

b) health care reform is not about making the least amount of waves possible and the public option is not about "keeping the private insurers honest"; rather, it is about fixing a broken system that leaves millions uninsured and poses an incredibly heavy/inequitable financial burden on the (under-)insured and it is about fixing a system that is one of the least efficient among industrialized nations in terms of spending per capita.


stop raiding
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Senate Democrats drop "card check" measure from pending bill

http://www.indybay.org/newsitems/2009/07/20/18609239.php

 

 

The article suggests that dropping the card check provision was agreed to by Sweeney (AFL), Stern (SEIU) and Cohen (CWA). 


Unionist
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stop raiding wrote:

The article suggests that dropping the card check provision was agreed to by Sweeney (AFL), Stern (SEIU) and Cohen (CWA). 

That would represent quite a big change since Friday:

Quote:

In response to today's New York Times piece on the Employee Free Choice Act, SEIU President Andy Stern issued the following statement:

"As we have said from day one, majority sign-up is the best way for workers to have the right to choose a voice at their workplace. The Employee Free Choice Act is going through the usual legislative process, and we expect a vote on a majority sign-up provision in the final bill or by amendment in both houses of Congress."

stop raiding
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Unionist

As you may recall from other threads I don't hold Stern in high regard and would not be the least surprised if he has his public position and his backroom position. Therefore it is not a big change from Friday at all but perhaps another example of the disingenuousness of Stern. 


stop raiding
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I'm not sure how Sweeney and Stern will explain this monumental sell-out (and all the doublespeak) if indeed it is true. 

Execerpt from "Who Killed EFCA":

 

"AFL-CIO President John Sweeney and Service Employees International Union (SEIU) President Andrew Stern, while publicly claiming absolute victory on EFCA was assured, were reportedly involved in ongoing "negotiations" on jettisoning card check."

 

http://socialistworker.org/2009/07/23/who-killed-efca


Unionist
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I hold no brief for Sweeney or Stern, but I fail to see any clear evidence anywhere in the article for the author's proposition. The word "reportedly" is pretty thin, when it doesn't say who reported it. Am I missing something?

 


stop raiding
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Sorry, i thought I was clear when I said "if indeed it is true", But if you are holding your breath for Stern or Sweeney admitting that they deceived the labour movement then you may pass out. Only time and perhaps Senator Harkin will reveal whether labour's autocrats sold out on the cardcheck provision. In the meantime I will refrain from posting any suggestion that some backroom deal was made to jettison cardcheck unless it is a direct quote from some mainsteam publication. The last thing we want on babble is some alternative press conjecture for the sake of discussion. 


Unionist
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stop raiding wrote:

 In the meantime I will refrain from posting any suggestion that some backroom deal was made to jettison cardcheck unless it is a direct quote from some mainsteam publication.

You know, SR, I would pay attention to any actual evidence of a backroom deal regardless of the source. What I found odd was an alternative report saying they had "reportedly" done this deal. That's an MSM cop-out, not worthy of alternative journalism. I'd like to know why Sweeney and Stern are mentioned in particular, and not others.


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