Monday, June 1, 2009

EFCA Dialogue With Professor Michael Goldberg

I'm proud to introduce a new feature here at EFCA Blog. Readers might remember this op-ed in Thursday's Philadelphia Inquirer by Widener University School of Law professor Michael Goldberg, as well as my response.

I contacted Professor Goldberg and invited him to continue this fledgling dialogue on EFCA Blog, and he very graciously agreed. It's important to note how little substantive discussion is taking place on any aspect of this issue, and it's really an honor to have someone like Professor Goldberg take the metaphorical nosedive from the Philadelphia Inquirer to EFCA Blog to help change that fact.

I don't know how long this will continue, as I'm sure Professor Goldberg is a busy man, but with exactly this much ado, I present you with his response to my post:
Thanks for your reaction to my piece. I agree with much of what you write, especially that first contract arbitration is probably a greater source of employer opposition to EFCA than card check. (The portion of my op-ed dealing with arbitration, and stiffer penalties for unfair labor practices, had to be cut for space reasons.)

On the other hand, as you point out, card check is the argument against EFCA that has the most political traction. The anti-EFCA forces know that portraying EFCA as destroying the secret ballot makes EFCA sound un-American. Employer arguments about arbitration come across as more self-serving, and I think can be overcome more easily by EFCA's supporters, than employer arguments based on card check -- insincere as they may be -- which come across as defending not just the secret ballot, but mom and apple pie too.

You're right, employer forces aren't interested in compromise, and neither, probably, are politicians who are completely in their pockets. But taking away the political high ground employers have seized with their "defense" of the secret ballot also takes away some of the political cover some moderate Democratic senators, like Specter and Carper for example, are currently hiding behind to justify their opposition to the current bill.

Without that political cover, maybe enough votes can be found in the Senate to overcome an anti-EFCA filibuster.

-- Michael
And here, is my response:

I think I better understand where you're coming from now. First, a point that I didn't make clear in my initial response: The ideas you proposed about gaining a super majority for card check purposes, as well as a secret ballot fallback in cases of labor intimidation are excellent ones. As we both know, the whole labor intimidation argument overlooks the fact that employer intimidation is rampant in the current system, but nevertheless the potential for labor to do the same might exist were EFCA to be enacted, and ignoring that possibility is irresponsible. Your solution would be an equitable one.

In addressing your most recent response, I would say that while I agree almost completely with your summation of the framing of the debate, I disagree with how that framing can be changed. There's no question that business has the rhetorical upper hand as it relates to card-check. Ignoring the issue and concentrating upon Sacred American Institutions ('mom and apple pie' as you hilariously described it) is the way to go. The problem for labor is that any direct rhetorical defense of that argument is a bank shot. It starts out with some variation of "no it doesn't really, because," or "they're being disingenuous because if you think about how things are set up now," and it gets totally confusing for anyone not familiar with the minutia of the issue, which is everyone. More specifically, it's impossible to deflect the apple pie rhetoric in a 30 second TV ad.

What I think you're saying is that if labor makes a genuine effort to preserve the secret ballot under some circumstances that it will make the Sacred American Institution attacks...less...well I don't know exactly. Less what? Effective? Plausible? You say it will provide less 'political cover' for moderate Democrats, but plenty of moderate Democrats are already hiding behind what is a completely disingenuous argument. If these Democrats had legitimate ideological concerns about card check, I think your argument would be dead on, but I suspect that's not really the case.

I guess my point this: the Sacred American Institution attacks will never, ever, stop. In fact, if anything they're an excuse not to compromise if you're business (or maybe even if you're a fence-sitting Democrat). Because even if labor agreed to completely drop the card check provision (a compromise that would clearly be in biz's favor) moderate Democrats would refuse precisely because they'd lose their Sacred American Institution boilerplate. Put more succinctly, for moderate Democrats there's enormous pressure to say you want/are willing to compromise and enormous pressure not to actually compromise. Eliminating the foundation of the rhetoric means you can't hide behind it anymore. That's why (as I've written before) I think you'll see multiple compromise 'camps' emerge, each with their own singular, intractable complaint, the result being that actual compromise becomes nearly impossible.

To close I'll make one final point: I think directly combating the Sacred American Institution rhetoric is a mistake. It can't be done in 30 seconds, or probably at all. Labor's single biggest problem right now is the lack of a coordinated message. Every time I see a pro-EFCA TV spot with a smiling worker I imagine labor throwing money into a trashcan and lighting it on fire.

Every single advertising dollar labor spends should be tying EFCA opponents to the most unpopular people/images in the US. Find the worst thing Rush Limbaugh, Dick Cheney, and random banking CEO 'X' have ever said about EFCA, set it to some dark color backgrounds with scary music, and close with "Why do they hate workers so much? Support American workers. Support the Employee Free Choice Act." Then, I'd go around to every fence-sitting senator, laying three things out on the table: 1) a version of the same ad editing out Dick Cheney and editing in that senator (replacing the word "they" with that senator's name of course) 2) a different ad with smiling workers talking about that Senator's support for workers in that state and 3) The receipt of a $5 million TV ad buy. Then simply ask that Senator, "so how do you feel about EFCA?"


  1. Hi there. Just happened on your blog this past weekend and found it very interesting. Generally well thought out and even-handed perspectives rather than the usual respective advocacy sites proliferating around the web.

    Anyway --- have some personal thoughts regarding theoretical EFCA compromises that I would like your opinion on. Without elaborate prefacing commentary, they are as follows:

    Card Check

    1. Union serves written notification to the employer via registered certified mail with a concurrent copy to the applicable NLRB regional office of intent to initiate a card check recognition campaign in a clearly defined and appropriate collective bargaining unit. The union must submit an initial minimum 30% showing of interest from such unit with its notification copy to the NLRB. The employer in turn must submit the traditional bargaining unit Excelsior list (employee names and addresses) for receipt by the NLRB regional office within the three (3) working day period (Monday-Friday) following its receipt of the union written notification.

    2. Commencing upon the employer’s receipt of the aforementioned notification, there will be a ten (10) working day facilitation period (Monday-Friday) during which the NLRB will verify the union’s initial showing of interest and attempt to secure agreement between the parties on an expedited secret ballot election. Such election will be conducted not later than ten (10) working days following the facilitation period, unless otherwise mutually agreed between the parties. There can be no campaigning or solicitations of any nature by or on behalf of either the union or the employer during this facilitation period.

    3. Immediately following the facilitation period the NLRB will release the employer submitted Excelsior list to the union, and the parties are free to campaign within existing legal parameters and regulations prior to an agreed secret ballot election date.

    4. In the absence of agreement on an expedited secret ballot election, the union is free to pursue its card check recognition campaign during a thirty (30) calendar day period following expiration of the facilitation period. If successful in obtaining signed authorizations unequivocally indicating desire for representation without an election from 50%+1 of the identified collective bargaining unit, then certification will be automatically granted. Such authorizations cannot pre-date the card check campaign period. If unsuccessful, then existing election procedures and regulations will apply for the ensuing twelve (12) month period.

    5. If an expedited election is not agreed by reason of employer reluctance, then he shall be prohibited from conducting “captive audience” meetings of any nature with the affected workforce during the ensuing thirty (30) calendar day card check campaigning period unless he makes a timely offer of reciprocation to the union under identical terms and conditions which he utilizes for such meetings. This does not prohibit nor require reciprocity for such meetings that are voluntary and initiated by employee(s) request.

    6. No labor charges filed by any party can serve to block or impede an expedited or statutory election. Upon investigation, if such charges are found meritorious and are determined to have fatally flawed a free and fair certification process or violated the foregoing rules, then the offending party will have certification mandated or revoked, as may be applicable, for the ensuing twelve (12) month period. Similarly; any complaint regarding the appropriateness of a claimed collective bargaining unit or the complement therein shall be adjudicated post-election and can only overturn the results of such election if potentially determinative to the outcome.

  2. Damn Jim, and here I thought I was a superwonk. You're either in the biz, or have altogether too much time on your hands.

    Joking aside, thanks very much for the blog props. There's an absolute lack of substantive discussion on this issue, and I hope EFCA Blog is changing the landscape at least a tiny bit.

    Before I say anything about your comment Jim, I'd like to volunteer the following:

    I'm not a union organizer. Never have been. Have some friends who are, and have done a fair amount of GOTV, as well as some grassroots organizing, but still no union stuff. It's going to be fairly difficult for me to judge your ideas on practical organizing effect because of it. I very much hope that other readers directly involved with unionizing efforts (or employers for that matter) can offer up their thoughts.

    Given that, my comments will be painted with a fairly broad brush.

    1) Seems like the primary change is a focus on expediting the election process, which in my opinion is actually a better solution than card check, if you combine it with a prohibition on mandatory anti-union meetings.

    2) I would worry about the fairly swift timeline outlined in point 4, given that some bargaining units are much, much larger than others.

    3) I worry that the prohibition on campaigning outlined in point two would be quite hard to enforce.

    4) Isn't there a concern that labor would negotiate for an expedited election in bad faith, just to initiate the card check provision and prevent captive audience meetings?

    That's all I have for now, and that was after an admittedly cursory reading. I like the cleverness of some of your points though, and I agree with many of them, especially the expedited election calendar and increased employee campaigning restrictions . As I said before, I think card check is a pretty poor solution to a legitimate problem.

    Ultimately, I think your solution suffers a tiny bit from a lack of robustness.

    Great stuff though. One thing you do illustrate really well is that it's very difficult to talk about any of these provisions in a vacuum, especially the increased sanctions for Unfair Labor Practices. While reading your comment, I kept thinking about how much effect a legitimate deterrent might have on the issues at hand.

  3. DP: Thanks for your prompt reply and initial impressions. And you're right ---- have been in the labor relations biz for 30 years(the first 25 within the labor movement itself and the past 5 as an independent labor relations consultant).

    My card check alternative approach is more about changing the rules of the game itself rather than simply 'leveling the playing field'. My personal belief is that notwithstanding the public posturing and rhetoric, the real motivations to the competing sides of the debate on this facet of EFCA center on controlling communications to the employee electorate. EFCA in its nascent form would virtually eliminate dissenting views (be they employer or employee) from being heard and considered. Card check authorization is more of a visceral response to a given moment's emotional stimulus rather than an action based on objective considerations.

    Aside from the comparative minority of employers who request elections only to buy time for employing intimidation and coercion tactics, most other employers do so because they have been blindsided by the union's organizing attempts and legitimately want an opportunity to express their views and concerns before certification becomes a reality.

    To the specific points you raised, my responses are:

    1). The focus indeed is on reasonably expediting the election process, which we are in agreement is a far better solution than pure card check. In my personal experience, the longer the wait for balloting the more potential for purposeful or inadvertent transgressions by one or the other parties, to the detriment of the workforce.
    As for prohibiting mandatory anti-union meetings, I would respectfully submit that dissenting views do not necessarily equate to anti-unionism. The mandatory aspect is far less important than the tone of the presentation (style versus substance), and operational logistics and federal wage and hour rules are necessary considerations to this circumstance.

    2). The timeline proposed in point 4 is predicated on three factors: first; theoretically the union will be more than halfway to realizing the 50%+1 threshold by virtue of its initial 30% showing of interest, second; the union will have the prospective bargaining unit Excelsior list (employee names and addresses), and third; the window of opportunity for obtaining such authorizations is reasonable but narrow, and if unsuccessful, the union must revert to traditional election procedures and regulations for the following twelve (12) month period. This would be a deterrent to the gamesmanship you allude to in your point 4.

    3). You may be correct that there would be a degree of difficulty in enforcing the no campaigning/solicitation aspect during the facilitation period, but the intent here is directed to wholesale and overt campaigning rather than the more subtle approaches. Regardless, the respective penalty envisioned in my 6th point for a found violation of this rule would act as a strong deterrent to either side.

    4). Your observation here is valid, but in addition to what I've already referenced in 2) above, there are two other relevant considerations to take into account: first; if the union is confident and legitimately has the solid support of 50%+1, it wouldn’t matter anyway. Nevertheless; it wouldn’t be prudent for the union to risk any portion of its support to the potential diminishing effects of an open and more protracted employer campaign against it, and second; it would seem foolhardy and politically damaging for the union to put itself in the position of being painted as the obstacle to an expedited secret ballot election during an ensuing campaign while it was trying to secure card check authorizations. Also bear in mind that the 'captive audience/equal access' restrictions envisioned in my point 5 are only applicable to failure of an agreement on an expedited election by reason of employer reluctance, not union reluctance.

  4. Jim,
    Switched sides huh? Was that hard for you? I don't mean that to sound snide in any way, I'm legitimately curious. From what I understand, most union avoidance consultants started out as organizers. With 25 years in, were you just disillusioned enough with both sides that you were more interested in getting paid than 'fighting the good fight'? Again, no judgment at all, just wondered. You may not feel like (or be able to) talk about it, which is fine.

    Onto the wonkery. Again, I'm out of my depth, so excuse my relative lack of knowledge. To your initial point, I think it's fine to think abstractly about what kinds of solutions would be equitable, but I also think we need to keep in mind that for better or worse, neither side (but especially business) is interested in equitable solutions. Labor went for some overreach, and I think it's hard to fault them for it. Business won't sit at the compromise table on a political level, and so overreach becomes almost logical.

    I disagree with the tenor of your "relative minority of businesses paragraph". What this statement overlooks is the fact that innumerable businesses would engage in employee intimidation and coercion tactics so vehemently that they've pretty effectively inoculated themselves from unionizing efforts. I might agree that intimidation and coercion happen the minority of the time in attempted union efforts, but that's because unions obviously put resources where they think they have the best chance of success (I'm sure everyone involved in Change to Win is laughing hysterically right now). There's a deterrent aspect to the "toughest" businesses that I feel is getting ignored.

    You make a point about the captive audience meetings in relation to not limiting dissenting viewpoints. I think it's valid. But, just last night I got an email from a reader talking about leading those meetings, and he described some pretty nasty stuff. I don't know.

    I'll try to sum things up this way, and I hope it doesn't reveal me as too much of a lefty dupe: the combination of captive audience meetings, an ability to fire pro-union workers, and an almost complete lack of sanctions for labor violations is untenable. It's led to extremely low (by Western standards) union density. I won't say that's inherently bad, but I'm enough of a Progressive that I worry that it might be.

    I think your solution is quite elegant on some levels, but doesn't address these issues enough.

    I worry this isn't the conversation you wanted to have, and that I've made your admirable focus on specifics overly broad.

    You can lead a horse to water, but you can't make them drink, as the saying goes, and I worry this is a comparable situation. Even the perfect compromise won't find a partner, especially in business, and what's further, they shouldn't compromise. They've got all the cards. Any compromise weakens them, and so they'll do whatever they can to avoid it.

  5. DP: Not 'switched' as much as 'forced'. Was a membership elected official for many years until my insistence on organizational ethics got in the way of contrary philosophies held by people higher up the political food chain. But it's a long story better left for another time. Needless to say --- a resume of 25 years in the labor movement doesn't generate an avalanche of offers for gainful employment. So I turned to independent consulting in my field of experience. Not union avoidance per se, although I conduct internal assessments of policies and procedures for employers with the goal of identifying and recommending changes that otherwise may evolve into catalysts for union consideration. My forte is collective bargaining and labor agreement administration where a union relationship already exists.

    Anyway,as you say --- onto the wonkery. I don't dispute your basic premise that equitable solutions and compromise probably are wishful thinking and academic at this point in time. The 900 pound gorilla in the room (politics) only exasperates the respective entrenchments. You may well be right that the political stars are misaligned for any meaningful labor law reform to occur in this Congress. I humbly defer to your political acumen on this point.

    Nevertheless; on the off chance that something positive may yet develop, it's interesting to 'wonkery' around on the issues a bit --- if for no other reason than to illustrate that reasonable compromise (albeit imperfect) is possible if the participants are willing. In my profession, the best bargain is one where both sides leave the table satisfied that they accomplished more than where they started from, but nonetheless are equally just a bit disappointed with the final outcome.

    A final thought on my proposed card check alternative. You make the point that you don't feel I"ve gone far enough to address issues related to extreme employer transgressions such as firing pro-union workers and the lack of meaningful sanctions for labor law violations. In my opinion, the proverbial 'horse to water' adage applies here. The best anyone can hope for is that people will conform to the moralities and ethics prescribed by law, and if they don't, that appropriate punitive repercussions are executed to redress the transgressions and deter future occurrences.

    To this regard, I am a proponent of the 'Strengthening Enforcement' concepts of EFCA (with some modifications), and I believe that my alternative approach of mandating certification against employers found guilty of labor charges constituting fatal interference with a free and fair election process (which the firing of pro-union employees certainly would qualify as) would make such extremist actions self-defeating and costly.

    And so onto arbitration. I, like you, firmly believe that this facet of EFCA is far and away more critical than the card check element in the grand scheme of things. Dare I say that I have some alternative thoughts on this as well? Let me know if you're interested.

    Best regards.

  6. Jim,
    Sorry I haven't gotten back to you. Been preparing for a job interview on Monday that I need to get. (EFCA doesn't pay the rent I'm sorry to say) I'll post a brief response to your final comment and then spin the arbitration issue into a new post. Sound good?

  7. Works for me. Good luck on your job interview. I have a sense that you would be an asset in numerous employment fields that I could think of.

  8. Jim,
    My last thought on this thread.

    You wrote: "In my profession, the best bargain is one where both sides leave the table satisfied that they accomplished more than where they started from, but nonetheless are equally just a bit disappointed with the final outcome."

    I think it's that first part that makes compromise on this issue such a tall order. It's hard to see a scenario where business feels like they 'accomplished more than where they started from'. There might be some positive PR to be had by taking a seat, but nothing positive from actual negotiation.

    Thanks for the well-wishes in regards to the job. Sadly, thus far every employer in the DC metro area pretty vehemently (or perhaps very ambivalently) disagrees with your assessment of my value. Let's hope it's different this time around.

    I'll start a new thread on Binding Arbitration by the end of the day.


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