I am as frustrated as many people at times when the legislature seems to move at the pace of molasses on important issues, but sometimes inaction is the best policy by far. The Employee Free Choice Act, aka Senate Bill 1041, aka House Bill 800 is one such instance. Thankfully, it is unlikely to pass the Senate during this congressional session because yesterday a vote essentially to set a timetable for voting on the measure itself failed.
The bill in question has a number of provisions, some good and some bad. For those who are unfamiliar, I will summarize the most significant and contentious change. Currently, if a group of persons working for a certain location wish to be represented by a union, there is a process by which this can be accomplished. These persons must gather signatures to prove that there is a reasonable chance that the majority of their co-workers agree with them. They present these signatures to the National Labor Relations Board. The NLRB then presides over a secret ballot of employees. If the majority vote for the union, it is certified; otherwise, it is not. The Employee Free Choice Act would remove the ballot section of this process. The union would be certified immediately upon receipt of a petition signed by a majority of employees.
Sponsors of the bill claim that this change is necessary because the current system empowers the employers to intimidate and misinform employees, preventing them from freely choosing to certify a union. That is such an absurd claim that I have a hard time writing it. I do not refute that some business use unethical and unfair practices to influence their employees. The problem is that union bosses and pro-union employees are equally likely to engage in such behavior. The current system allows both sides to present their platforms to employees and then allows those employees to secretly state their preferences to a neutral third party. The proposed system allows the union organizers to pressure employees into signing a card in their presence. The former may or may not give some small advantage to the employer, but it seems balanced enough to be called fair. The latter gives every advantage to the union and is entirely and unquestionably unfair. To refer to this bill as the Employee Free Choice Act is at least as “Orwellian” as the Ministry of Plenty, and I can’t decide whether to laugh at the absurdity or weep for humanity.
I honestly cannot understand how someone can support the name of this act with a straight face. The vast majority of issues have (at least) two viable sides, and while I may support one, I can understand and empathize with those who believe in the latter. On this issue, I simply cannot see any justification for the opposing viewpoint.
If there are specific methods by which companies unfairly intimidate workers into rejecting unions, those methods should be made illegal rather than replacing it with much more severe intimidation by union organizers. Representative George Miller introduced the bill with a speech that included the following:
The current process for forming unions is badly broken and so skewed in favor of those who oppose unions, that workers must literally risk their jobs in order to form a union. Although it is illegal, one quarter of employers facing an organizing drive have been found to fire at least one worker who supports a union. In fact, employees who are active union supporters have a one-in-five chance of being fired for legal union activities. Sadly, many employers resort to spying, threats, intimidation, harassment and other illegal activity in their campaigns to oppose unions. The penalty for illegal activity, including firing workers for engaging in protected activity, is so weak that it does little to deter law breakers.
Even when employers don’t break the law, the process itself stacks the deck against union supporters. The employer has all the power; they control the information workers can receive, can force workers to attend anti-union meetings during work hours, can force workers to meet with supervisors who deliver anti-union messages, and can even imply that the business will close if the union wins. Union supporters’ access to employees, on the other hand, is heavily restricted.
Should a business be able to fire someone because of their desire to organize? No. This is already illegal, but perhaps the penalties should be increased. (This bill does actually also call for an increase in those penalties. On that issue, I have no personal opinion.) Ironically, the card-check system would make it easier for employers to do this. Should employers (or anyone) be allowed to harass employees (or anyone) regarding this decision (or any other)? No. Once again, this is illegal but perhaps the current enforcement is inadequate. Should employers be allowed to make part of the workday listening to the company’s viewpoint? I would argue yes, but I can see the arguments in opposition. Should employers be allowed to imply that certification of the union would cause closure of the business? If they actually believe this to be true, then yes. If not, this would be obviously immoral and probably should be illegal. Should unions have greater access to employees? Perhaps. I am not sure what sort of access unions would be looking for. Given that a card-check has been successful, I certainly think it would be reasonable to require the company to provide contact information of willing employees to the union through the NLRB. It would be entirely unreasonable to force the company to subsidize the union’s speech by paying their workers to attend pro-union meetings.
Supporters of the bill may reply that I am naive and unaware of the underhanded and desperate tactics businesses will go through to get their way. I do not think that is the case, but perhaps it is. Even if so, the solution is not to practically sanction such behavior from the other side. I am well aware of the effects of unchecked capitalism, and I am quite grateful to organized labor’s efforts through the Industrial Revolution to prevent worker exploitation. I am also well aware that organized labor’s record over the last hundred years has been rather less clean than that of businesses. If an employee stands up to an unscrupulous employer, they risk losing their job and potentially being blacklisted from the industry entirely. It is a gross generalization that I am sure does not represent most collective bargaining organizations, but if an employee stands up to an unscrupulous union, they risk violence against themselves and their loved ones.
Organized labor has been a fairly hot topic in the news recently. In Davenport, et al vs. Washington Education Association, the Supreme Court of the United States recently decided that a state may disallow unions from extracting dues from non-members whom they represent and using those dues for purposes other than collective bargaining, such as political campaign contributions, without the permission of those non-member employees. I would consider this also a major move towards fairness. The entire idea of being represented by a union with which I explicitly do not agree is rather uncomfortable. Certainly if a person is reaping the benefits provided by the union, they should have some responsibility for providing the funding to support those benefits. I think if I worked in a union shop, however, I would rather not be represented at all. From what I understand, this is not possible.
In a more local story, one group of workers at Yuengling brewery decertified the union that represented them in early June. I’ve heard several opinions by people who are not associated with the brewery who claim that this was the direct result of blackmail and other unethical activities by the upper management of the company, and the Teamsters have called for a boycott of their product. I have not seen any such accusations or rebuttals by anyone who actually works at Yuengling and was represented by the union, so we may never be able to separate what happened from propaganda on both sides.