Wednesday, May 16, 2007

Orwell revisited: "Down with inefficient and unfair secret ballots!"

Excerpts from a report from the State House News Service, written by Michael P. Norton.

UNION FORMATION BILL ADVANCES IN HOUSE AFTER ROBUST DEBATE OVER PROCESS

STATE HOUSE, BOSTON, MAY 16, 2007. Legislation changing the way public employees can form unions stirred vigorous debate in the House Wednesday, a discussion that ended with a familiar result: Democrats outvoting Republicans to advance a bill backed by unions.

The bill approved by the House on a party-line 135 to 19 vote replaces a process under which employees considering creating a union would vote on the idea on a secret ballot with a process under which a union could be formed if more than 50 percent of affected workers sign cards indicating their wish to do so. An identical bill died last year after Gov. Mitt Romney vetoed it. Its supporters hope that Gov. Deval Patrick, a Democrat, will sign off on it.

"It comes down to employees who want to organize should be allowed to do so without impediment," bill sponsor Rep. Robert DeLeo (D-Winthrop) said during floor debate on the bill. "This creates a new system by which they can do so and that system is efficient and fair and should be adopted."

18 comments:

Anonymous said...

It's not the secret ballot that makes current elections unfair. It's a process that allows employers to compel voters (the staff) to listen to its arguments but does not give workers who support forming a union a similar opportunity to make that case to their colleagues.

Secret ballots don't correct that underlying flaw, and people who support card check do so because we want a genuinely democratic process. A a system that allows one side to dominate the debate so completely is undemocratic.

If you're interested in better understanding this issue, I highly recommend that you read this article by historian Nelson Lichtenstein about how the American process for forming unions came about -- and why the process no longer works well -- at: http://www.dissentmagazine.org/article/?article=780

Also, could you at least note that George Orwell was a union member himself and was quite prounion? Otherwise, you're in danger of commiting one of the transgressions that fellow used to warn against...

Paul Levy said...

So, taking away secret ballots makes it more fair? You can do better than that.

Assuming an employer wanted to "make" employees listen (which, in itself, is a counterproductive approach), once the workers are in an election booth, they can do anything they want, without fear of retribution or identification.

Happy to hear about George. The point I am making is neither pro-union nor anti-union. It is about using language disingenuously.

By the way, as this bill would only apply to public employee workers in MA, why is there any reason to believe there is this need? Many, many workers in MA state and municipal government have created unions under the very law you consider undemocratic.

BC said...

Unions have plenty of opportunity to make their case to workers at offsite locations during non-working hours. If there is interest, the workers should be willing to show up to hear the pitch.

Card check creates not only the risk but the probability that workers will be subject to intimidation to sign the cards. If the union leadership thinks it has a product that is both worth selling and worth buying, it should be able to make the sale via a secret ballot election without any help from intimidation by union thugs.

Anonymous said...

Paul,
The legislation applies to more than state workers, including employees of hospitals. The proposal amends Chapter 150A as well as 150E (the public employee statute.)

Paul Levy said...

Except it would be pre-empted by the federal law where that applies, correct?

MAK said...

The benefit to the check off cards instead of the NLRB monitored election is that the union can quietly and face to face button hole employees to sign a card without telling the employer there is a movement afoot to unionize. This can deprive the employees of hearing the employers rebuttal to union promises and argument.

Anonymous said...

Paul, It is not clear it would be pre-empted since federal law is not exclusive and only pre-empts if state law is contrary to or inconsistent with federal law. Plus, someone would have to litigate the issue to get a pre-emption ruling.

Anonymous said...

There are many reasons why the secret ballot doesn't fix the problems of the unequal access and debate.

Here's one: smart antiunion consultants don't wait until there is an election they risk losing. They advise employers to start pressuring employees to oppose forming a union before a petition to hold an election is ever filed.

Their axiom is that "you can't lose an election if it isn't held."

In many cases, employers succeed in creating the impression among staff that becoming visible in a campaign to form a union will create negative consequences for one's career with that employer.

If an employer does so and succeeds in derailing an effort to form an organization early on, before employees get to a point where they can request an election, employees never get that chance to make a secret ballot decision without fear of retribution or identification.

A secret ballot is not a counterbalance against employer intimidation if the conditions for requesting the ballot in the first place allow employers to so easily prevent employees from asking for an election.

Another flaw secret ballots don't fix: During that time before the election is requested, the employees have no right to ask for contact information for their coworkers to reach out to them to make a case for forming a union. The employer, meanwhile, is free to require every worker/voter to hear its arguments during this period. I hope you can see how a process where one party has unfettered access to all of the voters -- while the other party literally doesn't know who they all are -- gives the first party a major advantage.

"Union avoidance" consultants advise employers to take full advantage of this imbalance in the process.

While you feel that it's "counterproductive" to compel employees to hear your arguments against forming a union, the reality is that the vast majority of your colleagues in C-suites disagree.

Most employers in fact do require staff to attend meetings where they are urged to oppose forming a union, and these campaigns are very effective in discouraging employees from supporting forming a union. (Researchers at Cornell and elsewhere have done a lot of work to document all of this. See "Employer Behavior in Certification Elections and First Contracts: Implications for Labor Law Reform," Sheldon Friedman, Richard Hurd, Rudy Oswald and Ronald Seeber, eds. Ithaca N.Y.: ILR Press, 1994.)

Paul Levy said...

Thank you for that thorough exposition. I don't see us agreeing, but I appreciate the back-and-forth.

Let's reverse the question: Do you favor the ability of workers to decertify their union by means of a card check? When this issue was brought up as an amendment in the legislative debate, it was defeated 133-20, with the floor leader saying "There is no need to further complicate the bill with this unnecessary and inappropriate provision."

Anonymous said...

I think that almost every circumstance an employer has far more power and influence over a worker than a union does, and for that reason a very reasonable case can be made that a card check process for disorganizing a union is more vulnerable to employer manipulation than it is to union manipulation when employees are forming a new organization. Any card check process for disbanding a union would need to include real safeguards against employer influence.

On your decision to not really engage with the issues I raised above, I have to admit that I’m not surprised. I think that's what's most needed is some more willingness from folks within the employer community to face up to problems that make the status quo less than truly democratic. Instead, the far more common response is a sneering and somewhat intellectually dishonest taunt that “unions thugs” want to “take away” the right to vote.

Work is changing. Health care is changing. The economy is changing. The process that workers used to form organizations in 1955 does not work in today’s workplace. Many Americans believe that it’s a good thing if workers have a genuine option for forming their own organizations to have a say as all these changes are happening. Let’s figure out a way that protects individual workers’ rights and also restores employees’ freedom to form unions.

Putting a coat of “secret ballot” paint over the rotting exterior of today’s workplace laws doesn’t cut it.

Paul Levy said...

Dear Anonymous,

Replying to your comment, "On your decision to not really engage with the issues I raised above, I have to admit that I’m not surprised. I think that's what's most needed is some more willingness from folks within the employer community to face up to problems that make the status quo less than truly democratic. Instead, the far more common response is a sneering and somewhat intellectually dishonest taunt that “unions thugs” want to “take away” the right to vote."

I have engaged in as open a way as I have seen in Boston on these issues here and in many other posts on this blog. You can find them below. You seem to equate "engagement" with agreeing with your position. Just because you say something over and over again does not necessarily make it more persuasive. (Of course, the same applies to what I say!) I don't think that either of us expects to persuade the other: We are both writing to a larger audience here, including people who might not be as familiar with this topic and who might find our back-and-forth interesting, useful, entertaining, or just plain tedious.

And, I have never referred to someone as a union thug. I don't see myself as sneering, either. (Sure, I'll sometimes poke gentle fun, but you'll note that I do that at myself just as often on a variety of issues. Sometimes a little humor goes a long way.)

I do believe, however, that you want to take away the right to vote. The simple language of this legislation does that. A card check process eliminates the right to vote and can subject workers to a different type of intimidation. It is not intellectually dishonest to point that out. You don't deny that you want to eliminate secret ballot voting, you just think that another process is more democratic. That is where we disagree. It's fine to disagree.

On the decertification process, I disagree that the employer has much influence in such a case. In fact, an incumbent union has tremendous influence in the workplace in that situation, and the tables are turned. I believe that employees who want to decertify a union should have the same procedures available to them as those who wanted to certify it in the first place.

Anonymous said...

Paul,

I find your blog interesting, curious, smart, passionate and at times funny. That's why I find it jarring that your comments and arguments on this topic are -- to me -- clumsy and simplistic.

I've offered some detailed examples, backed up with references to some empirical research, of how problems with the status quo process undermine its fairness. I honestly think that the evidence on this issue is very compelling and that anyone who takes a close look at the process will be troubled by how poorly it allows workers to express their intentions when it comes to forming an organization.

If you think that the secret ballot is too important to phase out, I can understand that. We live in a culture that values secret ballots, even though they don’t inherently produce a democratic outcome if other circumstances undercut the process. (See the US Presidential Elections of 1888 and 2000.)

I do think that if you want to preserve the secret ballot, and you’re really concerned about creating a democratic process, that you have some obligation to put forward ideas for fixing the other problems that I’ve noted.

I think that many corporate figures are really antiunion and aren’t terribly concerned with whether the process is fair as long as it makes it difficult to form unions. But it’s convenient for them to appeal to Americans’ respect for secret ballots rather than be more candid about their desire for workers not to be able to form unions. I don’t get the sense that you are in that camp. You seem to really care about a democratic process. That’s why I’d hoped to hear what you thought about the issue of employers compelling voters to participate in antiunion meetings. Regardless of whether you personally think that tactic is productive or not, it is a real problem, as the research I cited indicates.

I'm genuinely curious about what you think not because I think that everyone must agree with me but because you're obviously a frighteningly smart guy. For that reason, it's especially surprising that on this issue you sound so much like the kind of ideologue who thinks that we could fix the health care system overnight if we'd just abolish Medicare, give everyone a Health Savings Account, and stop regulating Pharma and the insurance companies.

Finally, on whether you’ve sneered or not: I can’t help but reread your headline on this post. You invoke George Orwell -- a figure whom many prounion people regard as a hero and an inspiration -- to imply that people who support reforms like the Mass. bill don't care about finding a more fair and authentically democratic way for workers to form unions, and that we're really more interested in creating an inefficient and unfair process. I’ve gotta say: that comes across as sneering, at least to me.

BC said...

In the industrial sector of the economy, unions were able to win wages and benefits that were much more generous than would have prevailed without them in such industries as airlines, steel, aerospace, heavy equipment manufacturing, coal mining, railroads and autos, among others. However, most of the traditional steel and airline industry was driven into bankruptcy under the burden of uncompetitive wages and healthcare costs (including retiree healthcare costs). Private sector union membership has shrunk dramatically over the last several decades.

In the public sector, state and local taxpayers are starting to revolt against high property taxes needed to cover compensation costs that are increasing faster than the inflation rate including overly generous healthcare costs for both retirees and current workers, while the public sector unions have been generally uncooperative in realistically addressing the matter.

The key problem with unions, as I see them, is that they don't seem to know when to fight and when to back off in order to insure that the employer stays competitive or, in the case of the public sector, the tax burden remains tolerable. It's no wonder that managements try so hard to keep unions out of their workplaces.

Paul Levy said...

To anon,

This is a very odd kind of statement: "I'm genuinely curious about what you think not because I think that everyone must agree with me but because you're obviously a frighteningly smart guy." Is this some kind of pseudo-complimentary statement or an attempt to create a kind of elitist image of me? You don't pick words like "frighteningly" by accident.

And then you say, "For that reason, it's especially surprising that on this issue you sound so much like the kind of ideologue who thinks that we could fix the health care system overnight if we'd just abolish Medicare, give everyone a Health Savings Account, and stop regulating Pharma and the insurance companies." Here, you attempt to tar me with the brush of people who might have certain views about the future of the health care system. Putting aside the fact that some people might have those views and that they deserve respect for expressing them, even if I disagree with them, what does that characterization have to do with anything I have said? "The kind of ideologue," indeed. Who on earth are you to assert that someone is an ideologue? This is a not so subtle technique to isolate and/or demonize a person and to send a message to others that they would best be quiet about an issue rather than take a public position.

You stand behind the veil of anonymity and you make these aspersions about my character and beliefs. Nonetheless, I post every comment you have submitted so that our readers can have the opportunity to draw their own conclusions.

Here is the summary of my beliefs. I believe the National Labor Relations Act, as interpeted by the courts over the years, provides an appropriate mix of rights and responsibilities for unions, employers, and employees and has the inherent authority to properly protect and enforce those rights and responsibilities. I believe it has worked well over the years, under Democratic and Republican administrations. I believe that a union has appropriate legal options under the law to fight employers who try to act in ways not consistent with the law.

I believe that unions want to change the law to enhance their chances for winning. I understand that unions do not always win in their attempt to become recognized. I believe that this is often blamed on the NLRA process when it in fact it often represents a decision by the majority of workers that they don't want a union.

(And since you raised a historical analogy and because I love Constitutional issues, the Presidential elections of 1888 and 2000 did not undercut the process: That process was designed under the Constitution (I guess what you would call "other circumstances") to allow a result that permitted a president to be elected with less than a majority. The electoral system was set up to give small states a bigger say in the national election, so that the more populous states could not run over them. It was a way of protecting minority rights. It was not designed as a strictly democratic process. Likewise, if you look at the rules of the US Senate, there are ways for a minority of senators to hold up legislation, even if the majority favors it.)

Anonymous said...

Paul,

Let me try to lower the temperature a bit…

I didn’t mean anything malign by calling you “frighteningly” smart. Among my friends, “scary smart” is considered warm praise – it’s meant to describe the sort of intelligence that can inspire awe, which, after all, is an emotion that’s related to a kind of wondrous fear. If you felt was meant otherwise, I apologize.

A few points: I think you misunderstood my point about the elections of 1888 and 2000. I’m fully aware that the Framers deliberately made our elections for President less than fully democratic. Many Americans are wondering if the Electoral College is useful any longer, but that’s a separate discussion. We also know that the Framers decided to compromise on the issue of small state and large state representation. Does it still make sense for a ballot of a voter in Wyoming to carry more weight than a voter in California or New York? I happen to think that’s a really interesting question, but, again, it’s a different argument. Or: why the heck do we let an relatively obscure Senate rule that’s not mentioned in the Constitution—cloture—have such a major effect on how we govern our country? All fascinating topics.

My point is that, while I frequently hear defenders of the NLRB status quo imply that using secret ballots produces an outcome that is inherently democratic, this is not necessarily so.

As you noted, the Framers set up a system that uses secret ballots but they also introduced some constraints—like the Electoral College—that can create outcomes that are less than democratic: the candidate with fewer actual votes can win. In the same sense, I believe that flaws that have been introduced into the NLRB election process can create an outcome where the actual will of the majority of employers is often not accurately determined. I think this is a problem that should be corrected.

Defenders of the status quo frequently argue that workers successfully used the NLRB process in the past to form unions and, therefore, it must be a fair process. But it one steps back and takes a longer view of how the election process has evolved, it looks much different now than it did in, say, 1940. For example, the NLRB at that time did not allow employers to compel employees to attend antiunion meetings. Obviously, I think that the eventual decision to let employers use this tactic made the process far less democratic in that it gave employers a major advantage that workers who support forming a union don’t enjoy.

In polls conducted by unions and other bodies a growing number of American workers say they are in favor of forming an organization with their coworkers. Yet we are reaching the point where unions are close to vanishing from private sector American workplaces. This disconnect indicates that the process is not working as well as it should, under both Democratic and Republican presidents, and that the process has been made steadily less democratic.

I realize that not every group of workers wants to form a union. In many cases, workers would oppose forming a union, regardless of whether card checks or secret ballots were used to make the choice. But I think the evidence is persuasive that workers who genuinely want to organize unions can’t do so effectively using the current process. That’s why I think that reform is needed.

A few weeks ago, Ben Stein, the conservative Republican economist and sometime actor, wrote a column in the New York Times business section that pondered what he called “assorted mysteries of economic life.” Among those mysteries, he wrote, is “why corporate America has record profits both as an absolute number and as a percentage of G.D.P. And, in many parts of this nation, we have severe labor shortages. Why, in that case, have average wages stagnated for so long? We know wages in finance and at the top of the heap are rising rapidly, but why is wage growth stagnant throughout the rest of this superheated economy? It cannot just be foreign competition, because service sector wages are not rising or are barely rising at all. Why is labor, and especially organized labor, such a whipped dog?”

I think that if Mr. Stein took a look at what happens when workers in the service sector try to join together to gain a voice about these topics, he’d see that the deck is stacked against working people, and that’s a big part of the problem.

Paul Levy said...

Thank you for the clarification and the apology. I truly appreciate both. But what you say makes me feel extremely awkward. I have never put my level of intelligence into the awe-inspiring category and would be distressed to have anyone think of it in those terms. I think our opinions and character and deeds should be judged on their own, not in relation to the intelligence of the person. I have hung around academic institutions long enough to believe that intelligence is often a highly overrated attribute.

So I am left feeling that your comment -- even so nicely explained in your last note -- still represents a kind of set-up, as in, "Someone of your great intelligence should see the wisdom of what I am saying and, if you do not, you have some hidden agenda or you are intentionally being overly simplistic."

You note, "In polls conducted by unions and other bodies a growing number of American workers say they are in favor of forming an organization with their coworkers. Yet we are reaching the point where unions are close to vanishing from private sector American workplaces. This disconnect indicates that the process is not working as well as it should, under both Democratic and Republican presidents, and that the process has been made steadily less democratic."

I don't know that unions are close to vanishing. There is certainly no sign of that here in Boston. As I noted at the top of this sequence, there has been no indication that public employees have had any trouble establishing or maintaining unions in state and municipal government -- which I understood to be the main target of this bill.

As an equally plausible proposition, though, if unions are indeed diminishing in the country, perhaps it is because they are not serving a purpose that workers find as valuable as would have occurred in the past. We have had workers join our hospital from other hospitals in which they have been in unions and, without urging, point out how much more they enjoy the environment here -- how it is more respectful of them as individuals and promotes open and free communication with supervisors and others. Not a statistically valid sample, by any means, but perhaps an indication of an underlying problem some unions face.

On the election issue, though, I could not imagine being a union official and wanting to have members who were not given a chance to vote on the question of organizing. That lack of meaningful participation by all affected individuals -- not just the 51% who might be persuaded to sign an authorization card -- would be a cancer that would ultimately eat away at the very fabric of the union. Why? Because it codifies a fundamental level of disrespect for the opinions of all the workers and thereby erodes the underlying moral power of the union. It is perhaps at this level that we really have the largest disagreement.

If you go back to my post on August 25th, you will find a copy of my note to our staff on a related topic, the actions by SEIU elsewhere to denigrate the reputations of hospitals and their trustees to pressure them to agree to a card check system, which said, in part:

"We have too much respect for our employees to bargain away your rights to a free and fair election. We trust the people who work here, and we would respect your judgment should an election be authorized. You earn that trust every day by the way you take care of patients, participate in research, train medical professionals and one another, and support a wide variety of community activities."

I am going to take a break from this topic now. I think our back-and-forth has become so engaging for our readers that few others have joined in, while they wait to read the next chapter! Perhaps there are other points of view out there.

BC said...

I think average wage growth is sluggish despite a relatively strong economy because benefit costs, especially healthcare costs, are rising much faster than inflation. Healthcare costs account for a much higher percentage of total compensation (wages plus benefits) for workers at the lower and middle parts of the spectrum that for very highly paid people. The Kaiser Family Foundation, for example, estimates that family health insurance coverage now costs about $12,000 per year or so on average. For a worker earning between $15 and $20 per hour, this is a big deal. For a highly paid investment banker or senior executive, it barely makes the radar screen.

At least from an employer's perspective, it is much more appropriate to look at trends in total compensation per employee than trends in wages alone. If workers would like more of their compensation in the form of wages, they might consider accepting less in the form of health benefits by, perhaps, opting for insurance plans with higher deductibles and co-pays.

Anonymous said...

Paul:

I suppose private sector unions may seem healthy if you confine your gaze to Boston, but Boston is not America. (I can’t resist a little kidding: there are some conservative fellows on talk radio and a network called “Fox News” who seem especially convinced of this characteristic of Boston, by the way. This became an issue when Boston resident John Kerry ran for president.)

Here are the actual numbers: the private sector workforce is now 92.6 percent nonunion, and the trend for roughly a generation has been that the number of private sector workers in unions is shrinking, not growing. (In 1973, the private sector workforce was only 75.8 percent nonunion.) Putting aside how things look in Beantown, the larger trend is headed towards a vanishingly small union movement in the wider private sector.

This is a problem for public sector workers, too, because public employers pay attention to changes that private employers make and follow suit. Suddenly a public worker’s health plan, which was fairly typical for any kind of worker not too long ago, seems “overly generous” when compared to lousy coverage offered by nonunion private employers that have steadily whittled back workers’ health coverage. Another commenter above made this point.

Regarding your argument that an organization can’t “respect” members who organize it or participate within it through methods other than a secret ballot, I don’t think this is necessarily so.

In the 1940s, about a third of unions were formed without secret ballots. Workers in Canada and northwestern Europe often form unions using methods other than secret ballots, by any account I’ve seen those organizations are healthy, flourishing bodies.

In our wider political life, Iowans and citizens of some other states regularly select presidential candidates using a process that is even less private than a card check – the public caucus –and for the most part participants seem to feel that this method respects their rights. I would note that the Founders, as far as I understand, did not take a secret ballot in Philadelphia before announcing their decision to form a nation independent from Britain.

Regarding public employees’ ability to form unions, it’s important to look at places besides Massachusetts. It’s true that, for the most part, public employers in Massachusetts have not interfered when public workers decide to form a union. I suspect this is a legacy of a historically stronger than usual union movement in your state. Massachusetts elected officials are accustomed to treating worker organizations as stakeholders in making policy. The idea that people who work for a public body want an organization probably doesn’t seem like a threat to the common good. In states with that kind of political climate, it’s unusual for a public employer to require workers to attend antiunion meetings or use other tactics to pressure employees to oppose forming a union. (There’s research on this, if anyone’s interested.)

In this sense, the process that public employees in Massachusetts and some other states use to form unions resembles the NLRB process during the time when it was more democratic.

This is not true across the board. In other states, particularly in the Southeast, it’s very common for elected officials to simply make it illegal for public workers to bargain collectively. The political establishments of these states have never really accepted worker organizations in the private or public sectors as bona fide stakeholders in making policy. Worker organizations are treated as threats, whether it’s at Wal-Mart or the county hospital.

It’s becoming more common for public employers in areas with mixed political traditions to attempt to stop public workers from forming a union, using the sort of tactics that most private sector employers use. Public employees in Massachusetts have likely noticed that and I suspect that as a result they want to safeguard their freedom while they have some influence with decision-makers.

The sentiment that unions are outmoded and that employees simply just don’t want them anymore is very common among employers and the wider business community. Perhaps that’s so. But as I’ve pointed out repeatedly, the current NLRB process gives employers many opportunities to manipulate the outcome to ensure that workers have a hard time forming a union.

I support working towards making the process more democratic, so working people can participate in a genuine debate on the question, and so they can make that choice without feeling pressured to vote a certain way by the people who decide about the future of their career at that employer.

I think most Americans would agree that we’ve come to a rough consensus that it’s inherently problematic if a supervisor tells a subordinate that “you look really hot in that outfit. You can wear what you want, of course, but you’ll go far here if you wear things like that all the time.” We realize that there’s a supervisor’s influence over an employee is not trivial, and that implication of this remark changes when it comes from a superior in the workplace.

I think it’s time to realize that a similar problem is created when employers compel workers to come to meetings where they are told that “We urge you not to form a union. We strongly believe that a union is not necessary for employees here.” These arguments, when they come from the people who control one’s paycheck, as opposed to a colleague, carry a much different weight, and campaigns that wield that kind of power against working people undermine a true democratic process.