Monday, May 11, 2009

Compromise on EFCA May Be in the Works!

Jane Hamsher is reporting in The Huffington Post that Senate moderates Dianne Feinstein and Arlen Specter (new Democrat from Pennsylvania) have hammered out a compromise on the Employee Free Choice Act that Blue Dog Democrats like Blanche Lincoln, Mark Pryor, Jim Webb, Michael Bennett, Ben Nelson, Mary Landrieu, and Mark Udall could go along with.

According to Hamsher, Feinstein and Specter came up with a proposal that would save the secret ballot, one of the major stumbling blocks for the conservative wing of the Democratic Party. The secret ballot also was the main objection raised by anti-union business groups, like the U.S. Chamber of Commerce and their GOP allies, to rally their troops against passage of EFCA.

This compromise legislation would allow workers to mail their ballots to the National Labor Relations Board, thus preserving the secret ballot. As Hamsher reports, unions may not be happy about the compromise, but it allows them to eliminate a major hurdle that the other side has had great success at using to frame themselves as the protectors of an open and fair democratic process.

At the same time, the other bone of contention, binding arbitration, would be watered down through something known as “last best arbitration” or “baseball arbitration.” Specter is known to support this concept.

Indeed, for some trade unionists, that may be a more important battle to fight for than card check. One of the biggest obstacles unions have had to face in organizing a new local is that even when they win elections in secret ballot contests, company owners can stall indefinitely and refuse to negotiate a contract, making a mockery of the very democratic process they claim to be so ardently defending. As one commenter over at Huff Post put it:
I am a dealer at Caesars Palace in Las Vegas where we won our "secret ballot election" by a 3-to-1 margin in December 2007. We have been in negotiations for over 1 year now and it looks like it will be at least another year until we are probably going to be forced into impasse because management will not budge on a proposal that will take the tips away from the dealers who receive them (85% of their income and they are paid minimum wage by the employer) to redistribute to whoever they want, including those who are in management and are being paid as much as $40 per hour by the employer.

What we need from the EFCA may not be the "card check,” but we DO need "binding arbitration.” Without binding arbitration, the employer will negotiate for years until impasse is reached and then implement whatever they want, thus defeating the whole purpose of organizing.

Keep the secret ballot election, but ELIMINATE the 34+ days from the time of filing to the election date and replace it with a FIVE-DAY period. This way management ca not hire outside "persuaders" to come in and then force the employees into mandatory meetings where they will be lied to and intimidated. Where I work, they even threatened to have the green cards taken away from those who have them and who vote "yes" for the Union!
Here’s a definition of the various forms of arbitration
  • Binding Arbitrationis a procedure by which parties agree to submit their dispute(s) to a neutral third party, known as an arbitrator. The arbitrator considers arguments and evidence from all sides, then renders a written final and binding decision. The parties may mutually agree upon less formal rules and procedures or agree upon sections CCP 1289 et seq to govern the arbitration hearing.

  • Nonbinding Arbitrationis a type of arbitration where the arbitrator makes a determination of the rights of the parties to the dispute, but this determination is not binding upon them, and not enforceable in a court of law. The “award” is in effect an advisory opinion of the arbitrator’s view of the respective merits of the party’s case. Many times the parties agree to this format and utilize it in connection with attempts to reach a negotiated settlement.

  • Baseball Arbitration is another hybrid of a binding hearing and is sometimes referred to as an “either/or” arbitration, it has two popular forms “Night” or “Day” baseball. In each method, the parties submit their last best offer and demand to the Arbitrator. In “Day” baseball, the Arbitrator is aware of the numbers and chooses the figure deemed most appropriate. In “Night” baseball, the figures are kept confidential from the arbitrator. Upon rendering of the decision, the figure mathematically closest to the arbitrator’s award becomes the binding award. This format is best suited when the parties feel strongly about the reasonableness of their offer/demand

  • High/Low Binding Arbitrationis a binding arbitration wherein the parties agree to a high and low figure to bracket the award. The parties agree on a number for the low in which the plaintiff will not accept any less and also for the high in which defense will not pay any higher. If the decision is any number between the two parameters, that is the binding award. The high/low numbers are typically confidential and not shared with the arbitrator.
  • To my mind, you usually have to compromise to get anything in life, and especially in politics - you all know the cliché by now: “Don’t let the perfect be the enemy of the good.”

    I think that applies here as well. So, I believe that compromising on the secret ballot, as long as it is a mail in ballot to the NLRB, is acceptable, though far from perfect. The reason unions might be hesitant to give up the card check is because the problem for them in an organizing drive is never the actual secret ballot. It’s the amount of time it takes to get enough workers signed up so that it can actually go to an election, and the amount of abuse employees are subjected to in that time period.

    During the period leading up the election, employers have been known to hold meetings that go beyond mere persuasion or laying out their own case as to why workers shouldn’t join a union. As the commenter above demonstrated, too often corporations resort to threats, harassment, and intimidation to scare workers out of voting for the union. So, labor would like to find a way to circumvent a process that takes a long time and lends itself to scare tactics on the part of big business. That could be fixed by limiting the amount of days from the time workers sign cards indicating an interest in a union to the actual date of the election. Make it five or ten days rather than over 34 days. Or some other number of days that seems fair to both sides.

    The truth is that when secret ballot elections are held, the unions actually win the vast majority of them. According the U.S. Chamber of Commerce, out of 418 elections held in this fiscal year, unions have won over 62 per cent of them. So the actual voting process is still less the problem than what happens afterwards. To my mind, I’d fight hardest to hold on to binding arbitration, rather than the ballot issue. My reason for this is purely strategic, and here it is.

    Despite all the problems with the election process, it’s far too easy for big business and their Chamber of Commerce allies to paint labor as anti-democratic. The romantic ideal of the secret ballot is so ingrained in the American’ psyche - and for a very good reason - that opposing it is really putting yourself on the losing side of the battle among a public that has proved time and again that it places the greatest value on fairness.

    But it’s much easier for labor to frame its own argument for fairness on the issue of arbitration. After all, if a majority of workers have voted in a fair, secret ballot election to form a union, how does a company then justify the stall tactics to prevent their workers from obtaining a contract? After all, big business based their whole anti-EFCA campaign on the importance of protecting the secret ballot and upholding democratic principles. So, how do they then reverse themselves and oppose honoring the will of the majority after that fair vote?

    They can’t, which is why compromising on card check, even if it does make it more difficult to get to the actual election process, is the way to go. The public supports unions right now and is suspicious of large corporations, which have slashed workers’ benefits, gobbled up profits and bonuses, and bled their own companies dry with their untrammeled greed. Letting those people even have the appearance that they are principled and are taking the high road on this issue is counterproductive. Giving in on card check and holding out for binding arbitration to ensure that fair, open, and democratic elections are held and that their results are then upheld is the way for labor to check and checkmate big business. And it’s also the right thing to do.


    Anonymous said...

    Speaking from the management side of the table, I can tell you that we would much rather have card check be in the final bill than the current interest arbitration provision, so we agree on its importance at least. But, in the name of setting the record straight and making my pitch against arbitration, I want to point out a few things concerning your post:

    (1) As for the definitions you quote, most of them relate to "dispute arbitration" where the parties are trying to resolve a claim -- this is a quasi-judicial process where the arbitrator is deciding the validity of a legal ccomplaint of some kind. That's not an issue in EFCA as proposed, nor with the potential revisions. Rather, EFCA proposes that if bargaining between the union and the company does not quickly lead to an agreement on wages, hours and other terms and conditions of employment, a government-paid arbitrator will come in and simply set the terms of the parties "contract" (in quotes because a contract is usually definad as something two parties have agreed on). This is known as "interest arbitration" and the original EFCA bill has almost no guidance at all as to how it would be conducted. The current compromise bill, if it retains interest arbitration for first contracts, will likely reign in this wide lattitude of the arbitrator by using one of the baseball scenarios.

    (2) You say that we need arbitration to preserve the result of elections/card check. In my view that overshoots the mark somewhat. Where employers engage in illagal delaying tactics, such as failing to bargain in good faith or so-called "surface bargaining," and no contract is ever reached as a result, then maybe you can claim that the outcome fails to preserve the election results. I would debate that under some conditions, but that is at least arguable. However, many times the reason no first contract is reached is that the union comes in and demands wages and benefits that would literally bankrupt the company, or would subject the company to membership in a huge underfunded union pension plan, or would otherwise be unacceptable. This has never been considered to violate the act, or be grounds for a third party to come in and set economic and other terms at the workplace -- that would be a radical departure from our entire sytem of labor relations dating back to FDR. Indeed, the whole Wagner Act was based on the idea that we get the most efficient and practical result for the economy whan we protect the legal rights to organize and to strike, and mandate that the parties bargain in good faith. The parties' respective economic power will dictate the result. In my view, this system works well where the company abides by the law -- the problem is where you have bad faith bargining, etc. So, my suggested compromise would be: impose arbitration on employers who break the law and refuse to bargain in good faith, but not on the others (and spped up the board process so this is meaningful). But my point is that winning an election givs a union the right to represent the employees -- not to dictate what the terms of a possible agreement with the company will be.

    (3)The economic damage that will be done by interest arbitration is hard to calculate at this point, but in my opinion it will be massive. Initially, these awards are likely to be quite favorable to labor, as it is just the natrual inclination of arbitrators to push the envelope in that direction. But there will be many companies taken down by the burden of these "contracts" when the competitors without these agreements beat them to a pulp in the market.

    (4) If you had to pick a compromise method, I'd favor "night baseball" arbitration because of the effect it has in leading to agreements. Whereas EFCA's arbitration provision would lead parties to wildly overbid in an attempt to move the "middle" in their direction, in night baseball the threat of an arbitration where the party who is closest to the reasonable number picked by the arbitrator wins (and gets their number) actually encourages the parties to moderate their demands. If possible, you would want to end up $1.00 closer to the arbitrator's number than the other side, so you keep the outrageos demands in check. That said, this method works best for a single baseball player salary or other unitary consideration -- a collective bargaining agreement is a whole books worth of interlocking economic and non-economic terms, many of which are difficult to quantify. I'm not clear on how we will decide who is closer to the arbitrator on these matters.

    Enjoy the blog, thanks.

    AnonymousIsAWoman said...

    You raise some interesting points and I would like to be able to get to them point by point. However, right now, I'm rushed and just want to briefly acknowledge your well written, well thought out rebuttal.

    My first - and, admittedly, uncharitable - reaction upon reading your first sentence, though, was that since so much of the anti-EFCA PR campaign has been based on the lack of a secret ballot, it's very hard to back off from that now that a compromise may be at hand.

    Here's how it looks to the public: First the anti-EFCA forces were clamoring for a secret ballot. Now that they are probably going to get that in a compromise, they are saying - "Oh no, we'd rather have the card check, but please keep the weakened form of arbitration that benefits us more."

    Unfortunately, those conducting the whole anti EFCA campaign have staked their public position on how unfair to workers it would be to eliminate the secret ballot.

    This might seem terribly unfair to you, but I think labor should now dig in their heels a bit on the arbitration issue and keep it stronger, rather than weaker, for labor's advantage.

    The problem remains that so many large companies (I'm not talking about small businesses because that's not who labor is interested in organizing and most of the anti-EFAC forces know that) do not bargain in good faith. That's why labor, at first, was so insistent about the card check portion of the bill.

    Basically, unions who win legitimate, legal, secret ballot elections just want to see the rights of workers to form unions and bargain collectively protected.

    Unfortunately, you can't have it both ways, first objecting publicly that card check is undemocratic and then saying that card check is what you would be willing to compromise on. In fact, it looks suspiciously exactly like the bad faith that labor has claimed management brings to the table, because management seems to always be shifting the goal posts whenever labor gets within striking distance of a touchdown (or an electoral victory).

    As for the claim that labor will bring unfair and unreasonable demands to the negotiating table and so businesses need to be protected from capricious pro-labor arbitrators, I suspect that that is more fear mongering.

    Right now, most workers in the U.S. have seen their wages stay flat or decline and watched their health care and pension benefits disappear. At the same time, through good times and bad, those same workers have watched management heap upon themselves bonuses, golden parachutes, back dated stock options, and a host of perks ranging from paid luxury apartments to private jets.

    Perhaps before accusing labor of bankrupting big business, management and corporate boards of directors ought to look at the problematic behavior of their CEOs and top executives.

    Anonymous said...

    I'm also going to have to keep this short, but here are my responses: First, I must concede that the focus of the anti-EFCA effort was on the undemocratic aspect of card check, and I'll even go further and acknoledge that the business community did that because it was a political winner to beat back a bill they didn't like for reasons other then the sanctity of secret ballots and worker free choice. But, to be fair, many of us on the employer side have been saying all along that the arbitration provision of EFCA is the truly radical and potentially destructive part of the bill (while also criticizing card check as a flawed method of determining the employees free choice regarding whether to unionize). So, I don't see it as trying to have it both ways -- I think card check is a bad idea (as you point out, unions are actually winning more than half of elections as it is), but I think interest arbitration -- where the government effectively sets wages without agreement by the parties -- is much worse. You make some good points about corporate bad behavior in support of the fairness of arbitration. I guess I can just say that the cure you are presecribing may be worse for the employees than the disease, if I'm right about how this plays out. In my view, it would be prefereable to fix the NLRB process so that violators face a swift and sure response that provides the union with a real remedy -- then let the parties reach an actual agreement and move forward with some labor peace. An imposed agreement is going to have a shot at raising wages without endangering the company, and of course the carmakers are a good example of companies going bankrupt with CBAs they agreed to -- but I still think that, if a union is willing to strike for a particular benefit, and a company is willing to try to weather that strike rather than make the concession, the benefit is much more likely than not to be one that the company really can't afford. That's why the current sytem ususally leads to contacts without any strike; first contracts are tougher, but I contend the major problems are unreasonable union demands and some company unlawful tactics, which could be cured with a better enforcement scheme.

    Politically, I'm sure labor will "dig in their heels" as much as they can, but it seems like we're in a situation where the revised EFCA has to meet the objections of Specter and blue dog democrats -- I just don't know if going to baseball arbitration will be enough to get Blanche Lincoln and other dems who rely on business backing. I guess we'll see.

    AnonymousIsAWoman said...

    First, let me say that we actually agree on quite a bit here. To start with, any union that is truly anti-business doesn't understand something very fundamental, which is that destroying a businesss is killing the goose that lays the golden egg. Without strong, healthy businesses, there are no good jobs, period!

    For all my populist rhetoric, I am not anti-capitalist. I am against the abuses and unfair practices of some corporate executives. And some very fine business people would agree with me about those colleagues in the business world who mess it up for everybody.

    Having said all that, I agree with you that if arbitration becomes - for lack of a better word - too arbitrary and anti-business, it also becomes self-defeating. I am interested in a fair system that balances the interests of labor with those of business. Again, without healthy companies there are no well-paying jobs.

    On another matter, as you noticed, I said that 62 percent of secret ballot elections are won by unions. But that doesn't tell the whole story. Only 30 percent of the unions that win those elections actually get a contract from their employers.

    Because company managers can use delaying tactics for up to a year and then call for a vote to decertify the union, the union often fails to get that first contract. Then, employees who don't understand the obstacles that labor negotiators faced, are manipulated into believing the union didn't keep its promises, took their dues money, and provided none of the benefits that were expected. Nothing changed for them, so the workers would vote to decertify before they ever reached that first contract. That is a cynical tactic that more than one company has used in its union busting efforts, even when well run elections produced victories for labor.

    The main reform for a broken system needs to be prompt elections and strong sanctions for managers that don't negotiate in good faith.

    But moving beyond that, there is a lot that companies and unions can do cooperatively to provide benefits for workers while saving businesses money. For example, unions and corporations can combine forces to finance better health insurance and pension plans for employees who are union members, with both the company and the union chipping in to cover expenses.

    Unions could also provide training programs so that employees could upgrade their job skills and benefit the company, and also save the corporation money on training costs.

    Business and labor should, at negotiation time, be spirited adversaries, each advocating for their own interests. But they should never have become bitter enemies that can't come to win-win solutions. Nor should they fail to see where they can also cooperate for their mutual advantage.

    Finally, thank you, my spirited friendly adversary for coming here to present the other side of the picture in a polite, civil and well reasoned manner.

    Anonymous said...

    At last! A blog discussion about the controversial EFCA that actually discusses the issue(s) intelligently and FAIRLY from both points of view, and does not DEGENERATE into the typical "It strips workers of their right to a 'sacred' secret ballot--no it does not--yes it does--no it doesn't--less filling--tastes great" mindless tug-of-war. Congrats & kudos to you both, and thank you.

    Let me introduce myself. I am a casino dealer who is involved in an effort to unionize along with my co-workers, but unlike the Las Vegas dealer you referred to in your OP, I am located in Atlantic City, NJ. My co-workers and I voted and won a "sacred" secret-ballot election 2 years ago by an overwhelming 71%-29% majority in favor in a bargainning unit comprised of nearly 1100, no small feat, I assure you. This took place after facing a pre-election "union avoidance" campaign that you accurately described in your OP. Without getting into the GORY details, the one word that comes to mind in describing this campaign is viscious.

    What has occured since then in our situation is something that neither of you has discussed so far:


    Sorry, that's inaccurate. ENDLESS litigation has occured. Our employer filed objections to our victory, as they have every right to do under the NLRA. The objection process (region-ALJ-Natl Board) took about 11 months to play out (our employer lost all NLRB appeals) and the board issued a "final order" to recognize & begin bargainning with the Union in June '08 (1 year and 25 days from the date of our election). (Link if you care to read the decision:

    So we sat down and started talking, right?

    Not so much.

    Our employer REFUSED to abide by the order. The NLRA also allows appeals to federal circuit court, which is what they did.

    I won't bore either of you with any more details, but what I have described, while anecdotal, is more than likely being played out in hundreds, if not thousands more, IMHO. This is what is at stake in all the RHETORIC being spread about "protecting workers rights". The portayal of the US C of C as an agency suddenly interested in protecting workers rights is LUDICROUS, of course. The real issue here is keeping in place a system so one-sided in it's endless delays, so UNFAIR to workers and so PERVERSE that the employer gets to run their business as if the union had LOST the election, a process that Marty Levitt describes thusly in "Confessions of a Union Buster":

    Challenge everything ... then take every challenge to a full hearing ... then prolong each hearing as long as possible, then appeal every unfavorable decision. ...If you make the union fight drag on long enough, workers...lose faith, lose interest, lose hope...
    According to Levitt, in its complexity the nation's fundamental Labor law presents ENDLESS possibilities for delays, roadblocks, and manoeuvres that can undermine a union's efforts and frustrate would be members. The only way to bust a union is to lie, distort, manipulate, threaten, and always, always attack. The law DOES NOT HAMPER THE PROCESS, rather, it serves to SUGGEST manoeuvres and DEFINE STRATEGIES.

    The current unionization process resembles a despotism instead of a democracy, IMHO.

    The comments you have supplied on the bill's other 2 provisions are the best I have read so far on this issue, and I have read LOTS of them. Again, thank you.

    I look forward to reading any comments or questions you may have on what I have posted here.

    Oh, almost forgot to add: Our employer did all this while incurring fines for their ILLEGAL actions by the various agencies involved a grand total of...

    wait for it....

    (No, that's not a typo)

    Obviously the damages portion of the bill is a NO-BRAINER, at least it appears so from my view here in the "cheap seats".

    But then again if the workers get screwed, it's ONLY workers getting SCREWED, RIGHT?

    AnonymousIsAWoman said...

    Thank you for coming by and posting your personal experience. Indeed, as I pointed out, while over 62 percent of secret ballot elections go in the union's favor, only 30 percent of those election victories ever result in a first contract. As you have so ably shown, employers can use stall tactics to block the result of even a fair, well-run secret ballot election.

    I have heard many stories like yours. Thank you for telling your story on my blog so that others can hear it right from the horse's mouth - from somebody who experienced it personally. Folks, this is not third party hearsay. This is the testimony of somebody who directly experienced what I have been talking about.

    It is time to level the playing field. And to my mind, the best way to do so is to have binding arbitration and strong sanctions for those employers who circumvent the results of a fair election. That is more important than the card check vs. secret ballot issue. The real problem has always been getting corporations to abide by the results of the elections.

    Again, thank you for demonstrating this.

    Anonymous said...

    AnonymousIsAWoman said...

    It is time to level the playing field. And to my mind, the best way to do so is to have binding arbitration and strong sanctions for those employers who circumvent the results of a fair election. That is more important than the card check vs. secret ballot issue. The real problem has always been getting corporations to abide by the results of the elections.You said a MOUTHFUL, most of it is SPOT ON. I agree with your contention that the proposed arbitration and penalties to employers who BREAK THE LAW are the more important, but less publicized, issues for Labor in this bill, and keeping in place the DRACONIAN election procedures is the REAL issue for the anti lobby, not "workers rights"... (BWAAAAHAHA, still get a chuckle over that). Your description of "employers who circumvent the results of a fair election" is much too mild to those who do not deserve such a PC description, IMO, and while I understand why you choose to do so I have no such intention of letting them off that easily LOL. But because it is an argument that can be (and has been) successfully framed by the anti-EFCA lobby, it has received the most "ink". --as even the Anonymous "management side" poster agreed with:

    "...that the business community did that because it was a political winner to beat back a bill they didn't like for reasons other than the sanctity of secret ballots and worker free choice.I believe the "card-check" provision served it's purpose as a "lightning-rod", and can now be used successfully by the PRO-EFCA side, which could put the anti-lobby on the DEFENSIVE. As you said, the problem for labor and workers isn't winning elections, it's what occurs in the run-up to, and the aftermath of, these (NOT VERY) "Sacred" secret ballot elections.

    I enjoy the blog, FWIW.