Why EFCA? Why Now?

Stephanie Zvan

In times of relative economic prosperity, it’s easier for a worker to forget how many of our countries laws and protections apply to capital and how few apply to production. Sure, a job may not be a certain thing, but there are more. And barring skills restricted to a few industries that are always in trouble, aren’t we all at least above average in our ability to out-compete if the time comes to find a new job?

When the recession hits, it becomes much harder to remain blinded by our optimism. When an economic event of the magnitude of the one we’re experiencing now comes along, it’s impossible to miss the fact that the people who have no say in deciding the future of a company suffer the worst in the decisions that are made.

Yep, I’m blogging more about EFCA, this time over at Quiche Moraine.

Why EFCA? Why Now?
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Electric Blue

Stephanie Zvan

The first time I saw the fiddle, it must have been brand new, or nearly. We were both new to the band, him as a musician, me as audience. And dancer.

It’s the kind of music that demands all your attention when you’re dancing. Songs in things like 17/12 time, with half-improvised breaks and bridges and plenty of competition between the band members to keep things fresh from show to show. Every song a new rhythm. Every bar a potential about face.

You can’t think about this stuff. You’ll fall behind. You have to watch, and you have to guess where it’s going next. You can’t be drunk, either. A drink is fine–it keeps you from trying to think when you shouldn’t–but too many and you’ll be lost, only good for pogoing like too many people in the crowd. No good for dancing.

Watching the stage, it would have been impossible to miss the fiddle. Electric fiddle, electric blue. Almost as many pedals as there were on the guitar.

There was the constant question of when the mass of black, curly hair would finally get caught up in the bow or the strings, but it never did. The other question was how such virtuosity on that tiny instrument came out of such huge fingers. They couldn’t really move that quickly and precisely, could they? Why, that pinky ring was big enough to fall off my thumb without help. I know. I tried it.

The thing about watching the band that closely, about dancing when everyone else is moshing (well-placed, unpredictable elbows can almost always buy you room), is that the band notices you too. Something about the grin when you’re following a new song and doing it well maybe. Or just knowing that you’re there because of what they’re doing, not because you just wanted to get out.

He called me “Grandma” because I told him I didn’t date younger men. It fell into the category of silly lies, since we were two weeks apart in age. Still, it did what it was supposed to do, and gracefully. I don’t know that we ever talked about anything that wasn’t related to music or the band. We had a lot more to say to each other when we were a little further apart, separated by the edge of a stage.

Then, after a few years, the other fiddle player came back, and the blue fiddle went home. It wasn’t the same. The other guy was good, but…well, it was just a fiddle.

I’ve seen the blue fiddle only once since then. It wasn’t such a uniform blue anymore, worn to the wood in spots, and the hair was gone as well. The fiddle was still electric, though, and we still didn’t have to talk, just play and watch and dance. If the rest of the band had remembered how to play together, it could have been perfect. As it was, it was almost enough.

Still, not quite. At least (at least!) one day of every year, I miss that electric blue fiddle terribly.

Today is that day.

Electric Blue

In Which I Explain the EFCA

Stephanie Zvan17 Comments

EFCA, as most people now know, would replace the 70-year-old guarantee of secret ballots in union elections with unreliable “authorization cards,” often signed by employees under the watchful eye of union representatives and based upon extravagant promises. The new penalties and injunctions imposed — including substantial fines — are designed to intimidate employers into remaining silent during union campaigns so employees will not receive full information to make an informed choice. Meanwhile, there are no new penalties for unions, despite the potential for coercion in the card-signing process.

[…]

Arbitration panels are by definition a stranger to the work place. Yet real, private agreements are products of the needs, desires, capabilities and resources of the negotiating parties who are anything but.

That’s the line from the Wall Street Journal opinion page, so you know there have to be big problems with it. I count several acts of misdirection and two flat-out lies.

Streamlining Union Certification vs. Eliminating the Secret Ballot
Let’s start with the basics. The Employee Free Choice Act (pdf), or EFCA, is a bill currently before the House and Senate that modifies the U.S. law put into effect by the National Labor Relations Act. It’s a fairly short bill, amending a fairly short section of the U.S. Code. Specifically, it modifies four sections of the law, titled Representatives and elections, Unfair labor practices, Prevention of unfair labor practices, and Offenses and penalties.

The current law regarding the secret ballot is in section 159(c) [italics mine for emphasis]:

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees

(i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a) of this section, or

(ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in subsection (a) of this section; or

(B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in subsection (a) of this section;

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.

In other words, secret ballots currently occur when the National Labor Relations Board finds that a large number of employees wish to be represented but the employers has said, “No.” EFCA would add the following provisions [italics added]:

(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

(7) The Board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner described in paragraph (6). Such guidelines and procedures shall include–

(A) model collective bargaining authorization language that may be used for purposes of making the designations described in paragraph (6); and

(B) procedures to be used by the Board to establish the validity of signed authorizations designating bargaining representatives.

The new subsection (6) would eliminate the secret ballot only in the case where a majority of employees have already signed elections and only after an investigation by the Board to determine that the elections are valid, or reliable. In other words, it only eliminates the ballot when the Board is able to determine what the outcome of the election would be if it were held at that point.

Secret ballots may also still be held in cases where a substantial number, but not a majority, of employees have elected representation. Note also that there has never been any provision under this law to achieve a ballot without that substantial number of employees going publicly on record to request it. The process to acquire representation has always started with a public step. There was never a guarantee of secrecy. There was never even a guarantee of a ballot, as an employer could approve the choice of a union if, say, there were another union waiting in the wings that the employer cared even less to deal with.

In addition, there remains in Section 159 of the law a provision for a secret ballot to revoke the authority of the union to bargain for the employees:

(e) Secret ballot; limitation of elections

(1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 158 (a)(3) of this title, of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.

(2) No election shall be conducted pursuant to this subsection in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held.

As Chris Lowe points out at BlueOregon, certification without a ballot under EFCA would actually improve employees’ ability to rid themselves of a union. Employees would not have to wait 12 months to vote a union out if they discovered that the promises made to them had, in fact been extravagent. He also notes that it lessens the incentive for any kind of coercion or intimidation in gathering signatures for certification.

This feature of the NLRA after EFCA, if it were passed, makes remote the scenario speculatively proposed by anti-EFCA anti-Demo
cratic candidate campaigners: that card-check certification will be achieved in some instances (the campaign propaganda implies usually) through false majorities created by coercion of workers who would otherwise vote “no” on a secret ballot, coercion conducted by a minority of pro-union workers upon others to sign a certification petition against their true will.

In fact EFCA’s relation to Section 9(e) would provide a strong incentive for workers organizing a union through card-check certification to make sure they have not just majority support, but solid support by a substantial majority, because certification with signatures of a small and ambivalent or uncommitted majority could be challenged quickly by a determined minority, creating a situation in which either legitimate persuasion could succeed, or common and widespread employer anti-union intimidation tactics during organizing drives could be brought to bear. Any cases of a fraudulent pro-union false majority obtained by unscrupulous means would be rapidly reversed.

Facilitating Initial Collective Bargaining Agreements vs. Strangers in the Workplace
The modifications to the law regarding unfair labor practices is receiving much less press, probably because employers don’t want to be seen as trying to preserve their ability to be unfair. The second major amendment EFCA would make to current law add language that provide for a relatively speedy negotiation of the first contract after union representation is established.

(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:

(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section 9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.

(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.

(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.

This isn’t a particularly contentious provision. Employees simply don’t receive any of the benefits of unionization until a contract is negotiated and in place. Even the Wall Street Journal opinion page really only objects to it on the basis that arbitrators don’t work where the contract will be enforced, as though they will be so overwhelmed with their new-found power after the passage of EFCA that they’ll start making rules that neither side wants.

Strengthening Enforcement vs. Intimidating Employers
The third major section of EFCA is the most technical. It modifies both the section on preventing unfair business practices and the section on offenses and penalties. Essentially, it does three things:

  • It adds some unfair employer practices (firing, threatening to fire, or otherwise coercing employees during the period of time that employees are seeking representation) to the list of practices that will be expeditiously investigated. Under current law, only acts by the union or employees would be given priority.

  • Provides for payment to an employee of two times the back pay denied to the employee due to such discrimination.

  • Adds a maximum $20,000 civil penalty against the employer who “willfully or repeatedly commits any unfair labor practice” during this time. Under current law, the only penalty provided for is $5,000 penalty for interfering with the action of the board.

That’s it. These are the penalties that the Wall Street Journal is concerned constitute an unfair burden on employers. Expeditious investigation, back pay, and fairly small penalties for willfully breaking the law. Their objections are based on the fact that penalties against unions are not likewise strengthened. Missing from their discussion is the kind of illegal behavior on the part of companies that these penalties are meant to address:

Lack of meaningful enforcement results in pervasive lawlessness
Because labor law lacks any punitive sanctions – no fines, no loss of license, no possibility of prison time – employers are free to break the law with near-total impunity. Over the period of 2000-05, there were an average of just over 19,000 charges filed per year alleging employer violations of federal labor law; of these, 40% – or 8,500 cases per year – presented sufficiently strong evidence that the Labor Board either issued a complaint or oversaw an informal settlement between the parties (NLRB complaints are the equivalent of criminal indictments, and both complaints and settlements represent cases in which the Board judges a charge to have merit). While both unions and employers violate the law, the vast majority of charges stem from employer behavior. In 2004, for example, 88.5 percent of all complaints issued by the Board, and over 90 percent of all cases tried in hearings of the full Board, addressed illegal behavior by employers.

The most egregious form of illegal behavior is the firing, suspension, or demotion of employees. On average over the past 10 years, nearly 23,000 workers per year received backpay from employers after accusing them of violating labor law – and this only includes the cases adjudicated to the point that employers were forced to provide backpay to their victims.

While the regularity with which pro-union employees suffer financial punishment is shocking, it is often only the tip of the iceberg of illegal employer behavior. Much of this employer behavior remains hidden from legal authorities. But a glimpse into such practices was provided in 2004, when a South Carolina manufacturer sued Jackson Lewis – one of the country’s preeminent labor law firms – for advising illegal tactics in “a relentless and unlawful campaign to oust the union.” These included spying on workers, firing union activists, organizing a bogus “employee” anti-union committee, writing supposedly employee-authored fliers calling union activists “trailer trash” and “dog woman,” and supplying cash-filled envelopes to anti-union employees. What was unusual about this case is not the tactics employed, but simply that the internal tension between the company and its attorneys led to a public record of management’s tactics.

The information above is from a report titled Neither Free Nor Fair: The Subversion of Democracy Under NLRB Elections. While I’ve talked above about wh
at EFCA does and doesn’t do, this report is one of the best recommendations for its passage that I’ve seen. There are specific, very large problems in the current process by which employees are able to elect union representation.

EFCA, contrary to what its critics would have you believe, is a targeted response to those problems. The provisions I’ve listed are all of the bill. When you hear someone tell you that this bill does something I haven’t listed above, they’re lying to you. Ask them to tell you what part of the bill does what they’re saying it does.

Then ask yourself what they get out of the current system–a higher profit margin carved out of employee wages and benefits? The ability to continue to coerce their employees without penalty? A position of power from which they can continue to lie, to their employees and to you? There has to be a reason. They’re certainly paying enough for the privilege.

If you haven’t gotten enough of the lies surrounding. EFCA, Dean Baker at TPMCafe takes another one apart. This is the highly cherry-picked data that says unionization costs jobs.

In Which I Explain the EFCA

Atheists Talk–The Debate

Stephanie Zvan

America Losing Religion–And Morality?
Atheists Talk #0061, Sunday, March 15, 2009

On this week’s show we’re going to try something different. We’ll have a discussion between an atheist and a Christian about the current state of morality in this country. Is the decline of religion really leading to a loss of moral values, as the Religious Right claims? Is America going to hell in a handbasket? Join us for what promises to be a lively debate between August Berkshire, past president of Minnesota Atheists, and Robert Dull of The Pearlygate Network.

Produced by Minnesota Atheists. Directed and hosted by Mike Haubrich.

Podcast Coming Soon!
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Listen to AM 950 KTNF on Sunday at 9 a.m. Central to hear Atheists Talk, produced by Minnesota Atheists. Stream live online. Call the studio at 952-946-6205 or email us at [email protected].

Atheists Talk–The Debate

Wake Up

Stephanie Zvan

Yesterday morning, I got up, took a shower, drank my orange juice, and went back to bed. I slept another six hours. It was good for me, but it wasn’t something I can do again today. So today I’ll turn to a little Stromkern to get me going.

Stand Up

Now the people in the front, let me see those hands up. Stand up and demand some answers.

Wake Up

Changing Minds

Stephanie Zvan12 Comments

Sheril at The Intersection is asking where the women with big, world-changing ideas are. JLK at Pieces of Me wants to know where the psychologists are who made a difference in the world. I can answer them both in one person, Elizabeth Loftus.

Even if you’re not in psychology, there’s a fair chance you’ve heard of Loftus. She’s known as a skeptic, and her work has enough real-world implications that she makes the news fairly frequently.

If you are in psychology and you don’t know who she is…well, I don’t know what to do with you.

Loftus has been researching memory for somewhere around forty years. She started out by doing what everyone around that time was doing, studying storage and retrieval, classification and chunking–the nuts and bolts of memory of items. Then she started asking the kind of questions JLK is now.

All this time, Loftus had been working seven days a week on yellow fruits: specifically, she was studying how the mind classifies and remembers information. In the early seventies, she began to reevaluate her direction. “I wanted my work to make a difference in people’s lives.” She asked herself, “What do I talk about when I have no other reason to be talking?” An impassioned conversation about a man who’d been convicted after killing someone in self-defense suggested the answer. Perhaps she could combine her interest in memory with her fascination with crime by looking at eyewitness accounts.

Loftus obtained a grant to show people films of accidents and crimes and test their memory of such events. Thus the study of eyewitness testimony was born, a field she can literally claim as her own. At that time the world believed that eyewitness testimony was as reliable as a video camera. Loftus found that just the questions interviewers asked, and even the specific words they used, significantly influenced memory. “How fast were the two cars going when they hit each other?” will elicit slower estimates than “…when they smashed each other?”

Merely by careful questioning, Loftus could cause subjects to remember stop signs as yield signs, or place nonexistent barns in empty fields. Subsequent research has shown that violent events decrease the accuracy of memory: in fact, memory is weakest at both low (boredom, sleepiness) and high (stress, trauma) levels of arousal. The bottom line? Memory is fragile, suggestible, and can easily decay over time.

In other words, she started studying how memory works in real life, with real complications. In the process, she completely changed how we think about memory. She also changed police procedures and how trials are conducted. She created a great deal of upheaval, for which she’s probably still not well liked, but she set us on the path to understanding the science behind at least one part of the law.

In the eighties, another kind of memory started hitting courtrooms–recovered memory of sexual abuse, sometimes of organized ritual abuse. Loftus paid attention.

We live in a strange and precarious time that resembles at its heart the hysteria and superstitious fervor of the witch trials of the sixteenth and seventeenth centuries. Men and women are being accused, tried, and convicted with no proof or evidence of guilt other than the word of the accuser. Even when the accusations involve numerous perpetrators, inflicting grievous wounds over many years, even decades, the accuser’s pointing finger of blame is enough to make believers of judges and juries. Individuals are being imprisoned on the “evidence” provided by memories that come back in dreams and flashbacks — memories that did not exist until a person wandered into therapy and was asked point-blank, “Were you ever sexually abused as a child?” And then begins the process of excavating the “repressed” memories through invasive therapeutic techniques, such as age regression, guided visualization, trance writing, dream work, body work, and hypnosis.

Loftus had already seen how easy it was to change the details of memory by asking the right questions. Now she turned her attention to creating memories of events that never happened. We may not be surprised now that this can happen, and fairly easily, but much of that understanding is due to her work.

This was, of course, controversial.

She has been called a whore by a prosecutor in a courthouse hallway, assaulted by a passenger on an airplane shouting, “You’re that woman!”, and has occasionally required surveillance by plainclothes security guards at lectures.

…

Perhaps her voluminous mail says it best. One anonymous letter from an incest survivor concludes, “Please consider your work to be on the same level as those who deny the existence of the extermination camps during WWII.” Another, from a jailed minister accused of mass child molestation, begins, “Your dedication and compassion for the innocent have earned my deepest admiration.” Yet another, from a confused therapy patient, reads: “For the past two years I have done little else but try to remember. I have been told that my unconscious will release the memories in its own time and in its own way…And I need to know if I am really remembering. The guessing has become unbearable.”

Loftus has been challenged on the basis that she doesn’t study traumatic memory formation in children. However, her work (and others‘) suggests that the use of leading questioning, hypnosis, descriptions of others’ abuse and statements that a patient matches the profile of an abuse victim are all problematic forms of therapy that could potentially lead to false memories being created. Her work, once again, has practical implications for how we help others and society.

Wherever one falls on the controversies surrounding Loftus, she has dramatically changed our understanding of memory. She’s done this in ways that have direct implications for achieving justice. In doing so, she’s changed our world.

Changing Minds