Union organizing in the U.S. - the challenges

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Union organizing in the U.S. - the challenges

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:

[url=Rite">http://news.newamericamedia.org/news/view_article.html?article_id=395553... Aid Workers Stymied by Weak Labor Law[/url]



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.)


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.


Jacob Richter

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.


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


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.


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.”


On the EFCA from In These Times


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






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.


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



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.


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



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.


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.


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:

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.)


From that In These Times article linked above: 


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.


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

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


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


So they're talking half a loaf now.


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.


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...


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

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.


Labor unions find themselves card-checkmated


"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.



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

From the article:

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?



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).

[url=The">http://politics.theatlantic.com/2009/07/card_check_is_as_good_as_dead.ph... Atlantic comes closer:[/url]

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. 


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

Senate Democrats drop "card check" measure from pending bill




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


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 [url=quite">http://www.seiu.org/2009/07/statement-by-seiu-president-andy-stern-on-th... a big change since Friday:[/url]


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


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

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."




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

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. 


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.

stop raiding

I posted it for discussion purposes in the event that it is true. I am quite accustomed to journalists stating "reportedly' or 'sources have suggested" or even "rumours are circulating" and I am able to take that for what it is. As stated in the Indy Bay piece - Cohen was also mentioned as agreeing to this. Perhaps these leaders were mentioned because the democrats/the administration reached out to the supposed head and collective voice of the US labour movment (Sweeney) and to two of the single biggest union contributors to the Obama campaign (Stern and Cohen). Regardless, i don't perceive this conjecture as beyond the the pale. Here's a mainstream source (CBS) you may be more comfortable with. Call me a fool but it looks like a bit of backpeddling is happening.




As one A.F.L.-C.I.O. official told the Times: "This bill will bring about dramatic changes, even if card check has fallen away."

"...it appears likely that labor groups would accept a bill without the provision so long as the watering down doesn't go too much further.


When I re-read Stern's enigmatic statement in Friday's NYT, it seems quite plausible that he has been party to some secret deal.


stop raiding

Perhaps they see the binding arbitration provision as being a major victory and hope to try and reinsert cardcheck at a later legislative stage.


I don't remember in the last while a single reliable pusher of card check- someone with clout, not critics- saying in a way you thought they meant it that card check was still doable. Given that card check seemed to be dead, I don't know about calling people sell outs who agree to trade it away... as much as we may not like them for other reasons.


[url=http://counterpunch.org/early01292010.html]The Night They Drove Old Labour Down[/url]


Scott Brown’s defeat of Martha Coakley in the race to fill Ted Kennedy’s Senate seat has been greeted as a “game changer” for Barack Obama and his political backers. This GOP victory has deprived Democrats of their “filibuster-proof” super-majority in the Senate, making Obama’s health care plan—at least, in its current form--the most high-profile casualty of Coakley’s loss.

But, for trade unionists already disappointed with Obama, the collateral damage is far worse. Now, the White House staffers and Congressional leaders who’ve been re-assuring them that labor law reform was next on Obama's agenda don’t even have 60 votes to prevent Republican filibustering of the Employee Free Choice Act (EFCA)--in any form.

aka Mycroft

The turning point in US labour history was the failure of "Operation Dixie" (the effort to unionize the US South) in the 1940s and 1950s. This defeat allowed southern states to become a low wage magnet for factories fleeing unionized industrialized states and, in turn, resluted unions in these states to become more timid for fear that management would just pick up stakes and move. In turn, the continuance of the South as an anti-labour bastion made it more difficult to overturn Taft Hartley or pass pro-worker legislation and, in turn, made it easier for the right to pass free trade agreements that allowed Mexico and other countries to become low wage magnets for US manufacturing in their own right.

And why did Operation Dixie fail? A combination of McCarthyism and the legacy of southern racism and the inability of the white working class in the South to find common cause with Blacks. This allowed management to continue to pit black workers against white workers.


Very interesting, Mycroft. But I always thought (without data to back me up ready to hand) that rates of unionization in the States kept close to Canada through the 1970s - in the 30+% range - and then, precipitously, U.S. began dropping to where they are now (around 12%) while Canada fell a few percentage points and is still close to 30%. Do the factors you cited, all of which would seem to have been operative during the first 30 postwar years, explain the subsequent divergence? Or is there more?


Geez Unionist, simple question, eh.

I don't really remember the timing of the US drop, but I wouldn't say it was holding though the 70s- there was already a very substantial divergence between US and Canada rates in the early 80s.

At any rate, I think that Mycroft hit on all the major factors. I don't know type of things you were thinking of as possibilities for 'are there [maybe] more factors?' ...but I think the drasticaly different regulatory climate in the US arrested what would otherwise have been continued post-war momentum in organizing, as happened in Canada.

Ironic, because US workers got collective bargaining rights much earlier... and had really strong post-war growth in all the industrial sectors where unionization took off first.

The way I look at is that US unions missed out on the salad years of organizing- through the mid-70s- so that they were in a much weaker position when the economic changes made it harder for unions everywhere.

welder welder's picture

Ken,you're probably right.There is another historic factor not being discussed and that is the influence of the NAM on the RTW movement.There work took hold in the South and Mid-West which are traditionally Conservative/Libertarian and have a natural inclination to avoid anything tarred with the "Communist" label.

Ironically,for their dutiful following of the anti-Labour preaching of the NAM,those states now,on average:


1.Earn at least $5,000 less per year as their unionized counterparts in the same industry.

2.Have weaker benefit plans,if any at all.

3.Are 51% more likely to be seriously injured and/or killed on the job.

Check out Right to Work for less at the AFL-CIO website.If that's the "freedom" those folks want,namely the freedom to be poorer,pay for health benefits out of pocket,and,possibly be dismembered and/or killed on the job...Well,they can have that "freedom".


When armed with those facts,I cannot understand why anyone would think that "Right to Work" was a good idea for labour people?

George Victor

Unionist wrote:

Very interesting, Mycroft. But I always thought (without data to back me up ready to hand) that rates of unionization in the States kept close to Canada through the 1970s - in the 30+% range - and then, precipitously, U.S. began dropping to where they are now (around 12%) while Canada fell a few percentage points and is still close to 30%. Do the factors you cited, all of which would seem to have been operative during the first 30 postwar years, explain the subsequent divergence? Or is there more?

See Robert B.Reich's Supercapitalism, pp.80-86, and the graph on p. 81. The decline in private sector union membership began at the end of the 50s, more precipitously in the 70s, flattenint a bit by the 80s, but continuing."In 1955, more than a third of American workers in the private sector belonged to a labor union. By 2006, fewer than 8 per cent did." In Europe and Japan the decline began in the 80s, and has been much more gradual, less severe.  Canada is saved by public service union membership, eh?

Reich explains the economic and political reasons for this, but of course, with the mobility afforded to the corporation by the thinking of the Chicago School (and everyone's increasing dependence on corporate health for our "golden years"...although Reich does not go this farin his political analysis. He says, simply, that "power shifted to consumers and investors. Supercapitalism replaced democratic capitalism."


The US Labour Movement and China

Meanwhile, the fascinating fact we discussed about China is the unprecedented strike and protest wave occurring throughout that country and being led by workers - 90,000 of such "mass incidents" taking place last year alone. And, as the labor professors from China explained, much to our surprise, these strikes are being led by workers with no unions at all, are indeed uncoordinated (leading our MC to candidly compare these strikes to those in the U.S. which were led by the Wobblies in the 1920's), and are being tolerated by both the Chinese government and the ACFTU. The result of this is an increase in wages for workers in China. We also discussed, quite ironically, that if, as the labor professors do in fact desire, China adopts some type of U.S.-style labor law, it will be done for the very reason that the U.S. government and employers acquiesced to our labor law in the first place - because it will lead to "industrial peace" and quell the strike wave now impacting China.

In other words, China needs a U.S.-style labor law, the argument goes, in order to control its workers better and to obtain the type of compliant and acquiescent work force we see in this country - a workforce which continues to see its standard of living drop further and further with barely a peep in response.