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.Here’s a definition of the various forms of arbitration
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!
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.”
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.
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.