I dunno. I don't buy the violence argument, as it seems generally full of crap, but isn't a secret ballot something generally considered a good thing in democracies? It seems to me a bad stopgap that the NLRB elections are so screwed up that compromising voter anonymity is the way to go. Can we fix *that* problem, too?

I keep hearing about this issue, but really only have the vaguest idea of what the whole kerfuffle is about. How does management intimidate workers any more in a secret ballot election than in a card check process?

Meaning, wouldn't a quick secret ballot election (since it's the drawn-out nature of the process that is the source of the problem, apparently) solve the problem just as well?

I have no idea if that's actually feasible, of course, and as a greater many people who are smarter than I am seem enthusiastic about this legislation, I'm inclined to support it too. Just trying to figure out the nuts & bolts of the issue.

It's timing -- the organizers can spring a card check campaign on management without giving them a lot of time to react. A secret ballot election takes long enough that management has time to fire the organizers.

3: The problem there is that fixing the process on any detailed level would require detailed and enthusiastic cooperation from the NLRB, which isn't ever going to happen under a Republican administration. The card check process is better because there are fewer failure points.

A secret ballot election takes long enough that management has time to fire the organizers.

That's illegal, though, right? Not that it's actually enforced, but still.

That's illegal, though, right?

Not in North Carolina, or in any other ironically named "right to work" state.

It is illegal. If you make it through the several years in court necessary to prove it, the company has to give you your job back with back pay; a punishment that has them quaking in their boots.

Why can't it be an anonymous card check? Or an anonymous computer vote or something?

The EFCA is meritous in that it's a clever end-run around the myriad ways the NLRB has de facto eliminated the right to unionize. The actual means, I don't know about.

A neutral third party has to supervise the vote for it to be anonymous -- otherwise the organizers could just say "Yep, we got 50% + 1 votes, honest." And once's that's the case, you've got timeconsuming procedures to set up.

It's worth thinking about why a secret ballot is valuable -- I think it's only instrumentally valuable rather than anything fundamental. First, it's valuable for fear of intimidation, and I think we've got pretty good evidence that it increases rather than decreasing intimidation under these circumstances. Second, it's valuable (I think) because political votes are very low stakes for any individual, and so not much pressure or reward will flip people. In the higher stakes union context, I think that's much less of a risk.

9: My uneducated guess is that while Internet-style anonymity is trivial, trustworthy one-person-one-vote anonymity requires gatekeepers, announcements, all the officialities that make it take time and be abused. Whereas if you can just print and sign your name as you would a contract, your vote can be collected by anybody and be verified later.

By the way, I'm guest-cross-posting at LGM for a week or so. Anyone who wanted to leave clever comments over there would be appreciated.

The TAs and RAs at my university will never know if the secret vote for unionization passed because the ballot boxes were seized pending the lawsuit (which the university eventually won). According to the card check, though, the majority of TAs and RAs wanted a union.

Hire an accountant for the afternoon. Auditors check the ID against the employee rolls; people go vote.

The only issue I can see is stylistic rather than substantive -- "secret ballots are good for democratic decisions" is a simple, comprehensible, and generally true statement, whereas "management has spent years gaming the system to skew results and doesn't fear getting caught when they cheat, besides" requires you to produce evidence, etc. Watching right-wing trolls and some apparently good-faith objections on Sausagely's site has convinced me that there's not going to be the backlash to Senate obstruction or a Bush veto that there should be.

There won't be any backlash, snarkout. Advocating for labor is a lonely and frustrating job.

15: I just don't think it's practical -- a secure anonymous election managed by only one party to it? No one would buy that.

6. It is illegal, but it still happens all the time; and it's not easy to enforce. In an nonunion workplace, there are plenty of reasons to fire anyone (all employees screw up, all employees mess around on the job, see e.g. myself) and it can be hard to prove that a given employee was fired for retaliatory rather than legitimate reasons.

On preview, I've seen that this point has been made several times.

First of all, I love you LB. Second: we have two different systems of prosecuting what people refer to as "management harassment" and "union harassment". Since management harassment occurs in the confines of the workplace and leverages economic power over people, it is regulated via the NLRB, which can at best make people whole and mostly just buries your complaints in a hole. Whereas the things that people call "union harassment" are typically criminal acts that you can go to jail for. You're not allowed to threaten people, to slash their tires, to paint "SCAB" on their house, etc. The penalties for doing so are severe. So when people talk about "union harassment", they are either talking about criminal acts that have a pretty lively enforcement system discouraging them i.e. JAIL, or they are referring to how annoying it is to have a union organizer knock on your door, even after you've said you prefer her not to.

Having annoying people knock on your door is one of the costs of living in a democracy.

14: U - Penn?

Ain't sayin'.

Perhaps there's a lesson in British election practice. When you collect a ballot in the UK, the returning officer crosses your name off the roll and writes in the ballot number. You then vote secretly. After the count, the ballots are locked in a safe at the courthouse for six months, then burned if no-one appeals the election result.

It's not perfectly secret, but it's operationally so (remember, the count is completed on the night), and it has an audit trail.

Suggestion - split the card in two parts, one with a unique number and two boxes, one with the number, boxes, and signature box. The union hands out the cards, you take it away, scratch open the number, sign one half, tick the box, return the anonymous half, and either keep the other, or send it to some standing neutral party.

Count, and retain the stubs for the specified time period, then burn.

It's hard to read accounts like the ones here and not come to the conclusion that many employers are behaving awfully, and that the current NLRB procedures are flawed. That said, I am in what I take to be Cala's camp, in that it seems like abandoning the secret ballot doesn't seem like an ideal, or even particularly targeted, fix for the problems with NLRB elections.

If the main problems are a) firing union organizers, b) a 42 day election process that allows for intimidation, it seems like these addressing the concerns while retaining a secret ballot is an achievable goal. And the benefits of a secret ballot are obvious. Do we in fact need police reports to know that public voting creates a new opportunity for coercion? I don't think so. Now, it may be that keeping the whole process under the radar screen is even better at stopping coercion. This approach also hinders open debate, however, and that seems like a bad outcome.

That said, I am in what I take to be Cala's camp, in that it seems like abandoning the secret ballot doesn't seem like an ideal, or even particularly targeted, fix for the problems with NLRB elections.

When you hear actual labor activists talk about the issue, though, they often seem to believe that this would solve the majority of their problems -- they don't trust remedies that involve more stringently enforcing the NLRB laws, which are most easily imagined as a shift from companies breaking the laws and firing/harassing workers until they win the election with impunity 99.9% of the time, to companies breaking the lawsand firing/harassing workers with impunity 98% of the time.

Whereas you often here "The janitors in this building held an informal (i.e. card-check) election, and the great majority of workers want to organize, and now we have to wait somewhere between 2 and 4 years before the company will be forced to allow us to hold the election that actually counts, so we just hope that they don't figure out who the union supporters are and fire them all by then. So in the meantime we have to keep reassuring the workers that unionization is actually going to occur someday and they should keep trusting us."

It reminds me of how they take polls of the Iranian electorate every now and then that involve various reformist candidates getting lots of votes, and then in the latter half of the article it says "However, the Governing Council has not yet announced which of the reformist candidates will be ruled ineligible before the election. There is a slim chance that the will of the electorate will actually be carried out if the Governing Council accidentally lets a popular reformist stay on the ballot."

To follow up 25, I will refrain from correcting any of my legions of typos and say that I'm surprised to hear all this "secret ballot" rhetoric; from what I heard from union activists as an undergraduate the card-check process is more like a secret ballot because the employer doesn't know what's going on beforehand, whereas the NLRB election takes so long and is so annoying that it's impossible not to know where people stand for a long time before the actual election is over with.

20: Amen.

Secret ballot vs. actually functioning rules for organizing: the perfect is the enemy of the good.

"So organizers now have the same motive and opportunity for violent intimidation that they would under the EFCA scheme -- the signed cards are a sine qua non for a successful organizing campaign, and the organizers know exactly who has signed. Any violent intimidation to be expected under the new regime should already be happening now, at pretty much the same level of intensity you'd expect under the new regime -- secret ballot elections would have fewer successful unions, but they wouldn't be likely to involve less union-sponsored violence."

Without offering any opinion on any of the underlying issues at hand, this analysis is clearly wrong. The incentive of union organizers is to win the NLRB election that occurs after the initial card-check process. How is it a good strategy to, first, threaten and bully people into signing cards, and then second, hope they forget about the threats and the bullying when it comes time for the secret ballot? The second stage secret ballot provides an incentive for the union to act nice in stage one.

I have no doubt that a lot of unions are shady — my uncle has stories about nepotism in the building trade unions in Denver that still make him angry 20 years later — but we operate under a system in which companies which illegally fire union supporters can put off the token penalties for over a decade. If there were some sort of Broderian grand compromise out there where the US CoC would support snap elections (say, within 10 business days) with a secret ballot after a threshhold number of signatures had been gathered, that would be an ideal solution. But we're not going to get that; the NAM and USCoC are going to fight tooth and nail against any compromise that renders the rules less toothless than they currently are, and when something gets passed they'll either ignore it thanks to a complicit NLRB or wait until Republicans are back in a position to pull its teeth.

Without offering any opinion on any of the underlying issues at hand, this analysis is clearly wrong. The incentive of union organizers is to win the NLRB election that occurs after the initial card-check process.

The deal is that the initial card-check process is necessary -- if the union doesn't win at that stage, it can't go to the next stage. While a union victory at the card check stage isn't a final victory, a loss at that stage is a loss, and carries all the incentives to avoid loss that the final election does.

It's a little absurd to talk about "abandoning the secret ballot" when it's not as if if the current law required periodic elections in all workplaces. In fact, under the current law the vast majority of workers will probably never see a secret ballot election in their lifetimes. In the world of reality, what the EFCA would do is replace a system where (secret-ballot) elections are very rare with a system where (card-check) elections are more routinely possible. Which is more democratic?

Without denying that the current system is flawed (I do not know enough to be sure and certainly it is reasonable to assume that there is some improper employer intimidation of workers prior to an alection) I nonetheless think your analysis fails to account for some very important interests.

As I understand it, you advocate something that is not really an election with notice, but something more akin to a petition--the orgnaizers convince workers one at a time, get their OK, and once they have enough, they declare victory. But of course this seems to prevent discussion of the merits of a union by two important stakeholders--the employer, who is going to lose its legal right to bargain with employees individually and the employees who do not want a union, who are going to lose their legal right to bargain individually. The important decision is made without these parties having much a of a chance to say their piece; indeed, as I understand it (and please correct me), a union can be put in place without a majority of the support of the workers at any one time. That is, the union might get Bob's card this week, Betty's next week and Billy's the week after, yet at any one time, only one out of the three might want the union.

I imagine that there are things that can and should be done to make union elections more fair and reflective of the workers' informed desires, but as described, I do not see how this proposal significantly advances that end.

Any organizing campaign now has to go through the card check stage before the workers are entitled to a secret ballot election, and failure at that stage is fatal to the campaign.

I admit that I've only been following this through the blogs, but this seems like an amazing key point, and one that I've never heard before.

It's very simple, really:

1. There are laws on the books prohibiting private individuals from threatening and harassing each other, and there is no evidence to suggest these laws don't protect workers. There are laws on the books that are supposed to protect workers from management during organizing drives, and there is overwhelming evidence that these laws are a joke.

2. If you are a worker and you don't want a union, don't sign a card. If you are a worker and want a union, sign a card.

amazingLY.

32: The point is that the system in place now is very heavily weighted toward supporting the interests of management (not necessarily in its design, but in how it operates), and this is an attempt to give pro-union employees a bit more leverage.

this is an attempt to give pro-union employees a bit more leverage.

That much certainly is clear. But as I noted, there are other parties involved which also have legal rights impacted by the election.

Yes, and their interests are already quite well served by the current system.

38: I don't think you can make that case for employees who don't want to join the union, particularly if there are specific issues about the union in question that its organizers may be disinclined to bring up. But whether card check is perfect isn't the question. The question is whether it's better than the current system.

That is, the union might get Bob's card this week, Betty's next week and Billy's the week after, yet at any one time, only one out of the three might want the union.

I'll look into this, but I'd assume cards can be retracted -- why shouldn't they be? In which case Bob can retract his card if he no longer wants the union.

Yes, cards can be retracted.

Idealist, just because employers are impacted by the outcome of union elections, doesn't mean they have an inherent right to influence election outcomes as much as they see fit. Fair elections of any kind require restraint on behalf of parties who hold disproportionate power.

39: What's the problem for employees who don't want the union? Under the current system, they can just vote against it. With card check they just don't sign the card.

Cards can be retracted, and pretty easily. Also, they expire, which may lessen some of your concerns re: employees authorizing the union at different times. I think they have a shelf life of six months.

the employees who do not want a union, who are going to lose their legal right to bargain individually

I wonder how often this happens, in practice?

43: The problem is that they don't necessarily get much chance to try to talk their fellow employees out of signing cards. The campaign part of a representation campaign really should be doing some work. Some unions are better than others, etc.

Again, though, it's not about showing that card-check is perfect. If the part of the process that's supposed to be about giving employees a chance to educate themselves about the merits of unionization is instead being used to scare them out of it, then arguing that the education step is important doesn't justify opposing card check.

the employees who do not want a union, who are going to lose their legal right to bargain individually

Think of those poor unionized NBA players.

Idealist, just because employers are impacted by the outcome of union elections, doesn't mean they have an inherent right to influence election outcomes as much as they see fit.

No doubt. I'm not sure who you think said that. Certainly not I. But even if we assume that they now have disproportionate power, it does not mean that any solution that reduces their power is a good one.

So here's a thought experiment. If you really think that the card check is a good idea, would you allow employees who wanted the union out to use the same process to vote a union out?

That an employee might have the theoretical right to withdraw a card does not seem like a compelling fix. The main problem is that what is in fact a vitally important legal event appears to be, under this propsal, conducted if not in secret, at least not in a way where workers are most likely to be fully informed by all parties with a stake in the outcome.

I don't see why not -- the decertification process is parallel to the certification process now, and I'd expect it to remain so if the certification process changed.

So here's a thought experiment. If you really think that the card check is a good idea, would you allow employees who wanted the union out to use the same process to vote a union out?

Yes, provided that employers are restrained from interfering in employees' decisions.

My experience of card checks is somewhat limited, but it does seem to occur in an arena not conducive to debate. What happens is the union organizer badgers you for several hours and the only way you can get them to leave is to sign a card or be a complete bitch.

It certainly doesn't happen with someone setting out the pros and cons, unless you can think about the cons yourself. It certainly doesn't happen with widespread publicity even among the workers; if you can't convince a certain group your proposal is worth considering, just badger a few more people more likely to be sympathetic.

the decertification process is parallel to the certification process now, and I'd expect it to remain so if the certification process changed.

The authors of the Act do not seem to have been so fair-minded.

Oh my gosh! Are you the Jeanne d'Arc, of "Body and Soul"?

No.

Likewise, hi! You read Unfogged?

We were just fresh out of presidential pseudonyms.

Ah, crossposted. Oh well, that lets me skip a lot of boring gushing.

Likewise.

(Also, Jeannette is forgetting William Henry Harrison -- why must everybody forget William Henry Harrison?)

Perhaps the most comely of the early presidents.

Yeah, we're still quite far from running out.

Anyway, 52: I don't think there's a huge issue with decertification proceedings, but I wouldn't see a problem with card check decert -- if someone offered it as a deal for card check cert I'd snap it up.

51: What happens is the union organizer badgers you for several hours and the only way you can get them to leave is to sign a card or be a complete bitch.

Like, be a complete bitch by saying "No, I think a union's a bad idea and I'm not going to sign"? That doesn't seem like a lot to ask.

I think we can still take a moment to gush about Body and Soul. That was a really beautiful blog.

I'm gonna say this again vis-a-vis 51: one of the costs of freedom is that people get to annoy you.

It was, and therefore it's very silly to think that its author would have made anti-union comments, like, ever.

The EFCA does not set up a parallel process for decertification, nor does it add any additional constraints on employer behavior.

This is the key point: if you don't want to add more constraints on employer anti-union behavior, then you need to streamline the process for certification. Another approach might have been to add constraints on employer behavior and keep the two-step certification procedure, but this is not what EFCA does.

The EFCA does not set up a parallel process for decertification, nor does it add any additional constraints on employer behavior.

This is the key point: if you don't want to add more constraints on employer anti-union behavior, then you need to streamline the process for certification. Another approach might have been to add constraints on employer behavior and keep the two-step certification procedure, but this is not what EFCA does.

nor does it add any additional constraints on employer behavior

Only true in the trivial sense that it appears to increase penalties for things that already are existing violations but does not make more things violations.

it appears to increase penalties for things that already are existing violations but does not make more things violations.

Although increased penalties might help a bit, the increased penalties are trivial when compared to the $ employers already spend on anti-union lawyers and consultants. Increased penalties might also have the unintended consequence of creating more litigation and fewer settlements. In any case, by themselves they won't help much in the immediacy of an organizing drive (because of legal delays), which is why card check is important.

Got two people to sign union cards today. Didn't even have to take out my baseball bat.

Maybe if you schedule your organizing campaigns to start right after the World Series they'd give you an off-season discount.

70: Well done.

>>48: But even if we assume that they now have disproportionate power, it does not mean that any solution that reduces their power is a good one.

It's not an assumption. If you (or anyone else) doubts the absolutely overwhelming power that employers exert in most organizing drives, please read one or more of these:

We're not talking about a little bad-mouthing of the union by the company. We're talking about old-fashioned intimidation and bullying, threats to close the plant or office, threats to discipline or fire union supporters, making good on those threats, bribes, spying, paying co-workers to spy, using police power in small towns, requiring employees to attend multiple "captive audience" meetings, one-on-one interrogations, threatening to call the INS, and on and on.

If you haven't lived through it, it may be hard to imagine how much courage it takes to win an organizing drive these days, or even to go public as a union supporter. Even when employers aren't actively hostile, it takes incredible persistence.

Employers are always going to have plenty of opportunity to lobby against unionizing. Employees can talk union only during non-work times in non-work areas (breaks in the lunch room, etc). Employers can -- and do -- require employees to attend hours-long, one-sided anti-union diatribes, often scripted by high-priced law firms that specialize in union-busting. This is also why simply using the reverse process for a decert actually wouldn't be fair -- the employer still has highly disproportionate power.