Can Harkin Write A Real Employee Free Choice Compromise?

[Omaha Steve]

http://tpmdc.talkingpointsmemo.com/2009/03/can-harkin-write-a-real-employee-free-choice-compromise.php

By Elana Schor - March 27, 2009, 5:49PM

Sen. Arlen Specter (R-PA) delivered a setback to the labor movement earlier this week when he vowed to support a GOP filibuster of the Employee Free Choice Act (EFCA) -- but supporters of the union-organizing bill are proceeding undaunted with their grassroots lobbying efforts.

Meanwhile, back in the Senate, EFCA champion Tom Harkin (D-IA) has begun courting Republican supporters for a compromise deal, according to Roll Call. One suspects that a new organizing bill coming from Harkin, a stalwart progressive, would be more balanced between business and labor interests than the "compromise" being pushed by three corporate CEOs ... but that plan may be defining the right-ward end of what's doable.




Here's how Roll Call saw the lay of the land:

Democratic aides said that should a compromise be reached, it will likely end up somewhere between the card check bill as it's currently written and an alternative union organizing proposal floated by Starbucks Corp., Costco Wholesale Corp. and Whole Foods Market Inc. That plan would retain the use of secret ballots when workers decide to unionize and would not include binding arbitration provisions. It would, however, include a number of other provisions, including allowing unions access to employees during off-work hours and requiring a fixed date for elections.

The alternative has been publicly criticized by Harkin and other pro-labor Democrats as being unacceptable. But privately Democrats acknowledged it was the first sign of movement from the business community that a compromise may be possible.

Democrats predicted they would likely use the existing card check legislation as the underlying bill, with any major changes being made through amendments on the floor.

[madrchsod]

1. nothing will be gained from this compromise

without binding arbitration the bill is worthless.

[xchrom]

2. huh? no binding arbitration? -- think about that. nt

[Earth Bound Misfit]

3. Here's my compromise...

EFCA represents Labor's best chance for LONG OVERDUE reform of the NLRA. The card-check provision serves it's purpose in the bill as a "lightning-rod" by drawing the media and public's attention to an indisputable FACT (IMO):

The current system is broken, and needs fixing.

The bill as written, IMO, never had a chance to be passed. To use a sports analogy, passing it as written would be like hitting a world series game 7 bottom of the 9th inning grand slam home run to win for labor.

I would be willing to give up the card-check provision in exchange for a fairer election process, one that would:

1)shorten the length of time between petition and election.

2)give equal access to employees to both management and the Union during the period between petition and election.

3)Would streamline the redundant appeals process currently in place for post-election objections:

If the NLRB finds that the election was "fairly" conducted and certifies it, the employer is obligated under the law to bargain in good faith with the workers' chosen representative. HOWEVER THE EMPLOYER CAN "LEGALLY" DEFY the NLRB's ORDER by engaging in what is called a "TECHNICAL REFUSAL TO BARGAIN." Using this tactic, the employer REFUSES the union's bargaining request and forces it to file a NEW UNFAIR LABOR PRACTICE CHARGE with the NLRB. The NLRB must then initiate an unfair labor practice case based on the employer's refusal to bargain, and seek support for the NLRB ruling from a federal appeals court. YEARS OF LITIGATION CAN FOLLOW. And all this takes place AFTER the NLRB's ALREADY LENGTHY 2 stage appeal process. Ours took 11 months, some take longer, depending on circumstances.

I would be willing to make concessions on the arbitration and mediation provisions, maybe extend the period from 90-120 days to a year before the mediation and arbitration process starts. The 90-120 days is unrealistic, and IMO would actually deter any real bargaining in that period, because neither side would want to give an arbitrator a "starting point" in determining the final contract terms.

The one thing I would be unwilling to compromise on is the "penalties" provision. These are a must. A common expression of U.S. labor law says that the NLRA is remedial, not punitive. The NLRB cannot penalize an employer for breaking the law. It can only order a "make-whole" REMEDY restoring the status quo as the remedy for unfair labor practices.

This is what typically happens when an employer breaks the law:

The NLRB issues an order stating something like "we shall order it to cease and desist, to bargain on request with the Union,..." and further "order" them to POST A SIGN FOR 60 CONSECUTIVE DAYS "IN A CONSPICUOUS PLACE" stating (sarcastically paraphrasing) "We know we were naughty, but we promise we won't do it again".

OOH, THAT'LL REALLY SCARE 'EM.

Of course, they DO "do it again", because the current law provides no real disincentive for employers to flout the NLRB's "orders".

No, no compromise WHATSOEVER on the penalties provision. I'm sure the counter to that would be mgmt would want increased penalties on Unions who commit similar violations. Fine with me. Although I am fully supportive of Unions, I am not naive enough to think that Unions don't break laws, too, and by increasing penalties on Unions also, it provides even further protection for workers, which is NEVER a bad thing.

[Omaha Steve]

4. Donate to the Dem that will face Specter or Pat Toomey Fall of 2010

Earth Bound Misfit said a mouth full. Most of it is right on target!

Make (soon to be former) Senator Specter pay for what he did. That is the first thing that comes to mind.

I don't see how a union on the outside would ever have equal access to the workers. Maybe you can expand on that?

The alternate proposal to go with card check at 70% OR election at 50% plus one would be livable.

180 days before arbitration is scheduled. The initial back log on arbiters will mean a down the road schedule. A long wait for the first few years.

On penalties for the employer, hell yes. I got 3 & 1/2 years back pay less any and all $ I made after I was fired. Drop the less what was earned. Double the amount as is in the bill now. I can live with penalties on bad unions. I've never said anything different than that.

Anyone else have any other comments?

OS

[Earth Bound Misfit]

5. 180 days before arbitration is fair, IMO

"The alternate proposal to go with card check at 70% OR election at 50% plus one would be livable."

Same here, I could live with that, but the Anti-EFCA lobby has painted theselves into a corner by FRAMING their ENTIRE argument on the "protecting workers rights" & "protecting the secret ballot" CANARD(S). ANY compromise on this issue by the Pukes will be viewed as FAILURE by the uninformed public & media, something they cannot live with in terms of political capital.

"I don't see how a union on the outside would ever have equal access to the workers. Maybe you can expand on that?"

My main concern is what goes on in the "captive" meetings. We went through 12 HOURS of such meetings, 2 hrs a week for 6 weeks. The unionbuster we dealt with was a guy from Las Vegas named Mark Garrity, his firm was Balance Inc. In these meetings, this guy spread lies, and 1/4 truths about Unions in general, and the UAW in particular. To describe the BULLSHIT that went on in these meetings would require about 12 CHAPTERS, so I won't go into details here, let's just say there was INTENSE PRESSURE put on us to vote NO, and anyone who stood up to this guy's BULLSHIT was BARRED from attending any future meetings. This served at least two purposes. Union supporters were "painted" as troublemakers to the largely "silent" majority of workers in attendance in an effort to intimidate, and allowed the unionbuster to continue his diatribe without any effective rebuttal or discussion. The people they are targeting are those very same "silent" ones, and with no one around to question him, they were only hearing ONE SIDE of the debate.

What I propose is allowing at least one representative from the Union to attend these meetings, and make it a REAL debate. Management claims these meetings are intended to allow employees to "hear both sides" of the debate, but yet one of the "DEBATERS" is not allowed to take part in them.

[Earth Bound Misfit]

6. As for Sen "SPHINCTER" read this piece

I found @ http://campaigndiaries.com/2009/03/24/specter-no-to-efca/

A GREAT breakdown of the Specter situation, IMO. The author discusses how Specter may "Flip-Flop on his Flip-Flop" as early as next year. Also mentions that Lisa Murkowski, Olympia Snowe, Susan Collins and George Voinovich COULD BE open to an "acceptable" compromise. You really need to read the whole article to gain it's full effect, so I won't post an excerpt. Highly recommended reading.

[Earth Bound Misfit]

7. NO ONE has an opinion on this?

One of the most attractive features of the DU, IMO, is the critical thinking and writing skills of it's membership, which often brings spirited, lively debate and diverse opinions to a wide range of topics. Sadly, I find that discussion of important Labor issues (such as the proposed Employee Free Choice Act which presents the GREATEST opportunity for MUCH NEEDED & LONG OVERDUE Labor Law reform in 6 DECADES) is all too often limited to a very select few.

I'll repeat the question posed by OS---Anyone else have any other comments?

[DireStrike]

8. Most people are really uninformed about labor organization issues

I'd guess it's different in the labor forum, but maybe not.

The arcane legal systems developed to shield businesses from unionization have a chilling effect on conversation about union organization. People just don't understand what it is all about. I don't understand either, and it would require a lot of reading just to be up to speed. I just take it on faith that progressive labor people know what they're talking about, and support it.