March 16, 2009 02:55 AM UTC

Where is Mark Udall on EFCA?

• 16 Comments
• by: ThillyWabbit

( – promoted by Colorado Pols)

The question has inexplicably been bandied about on various blogs lately. All you have to do is search the Congressional Record for the details.

In short, Udall thinks EFCA as drafted has much room for improvement.

Follow me after the jump to read the gory details…

He thinks too much focus has been placed on the secret ballot/card check provision by both sides, and that both sides should be willing to move a little from their heels-dug-in positions.

On labor’s side, he thinks they should favor the secret ballot election, and to skip an election they should have some burden of proof on a case-by-case basis that majority signup would be more equitable to the workforce than a secret ballot election controlled by management. Labor can easily meet that burden of proof in most cases with all the history they have amassed with various troublesome employers since Taft-Hartley in 1948. This should not be a problem, yet they refuse to budge.

And while EFCA does some good stuff, he pointed out that it also doesn’t go far enough. The reason labor doesn’t like business’s ability to mandate a secret ballot election is that business gets to control the timing of said election and drag it out ad infinitum while they punish, bribe, fire, or otherwise coerce people into voting no. EFCA won’t fix that even if the union gets 100% of the workers to sign cards.

As Colorado Pols noted, it’s unlikely in this state that EFCA would eliminate even a single secret ballot election because it will be easy for employers to find 30% to petition for an election. So what then? The same broken process that drags on forever and fizzles out, which EFCA does very little to fix.

On business’s side, they need to stop lying about the process. They get “card check” to decertify a union. Why shouldn’t unions be held to the same standard in the process of certifying? It boggles the mind that they are concerned about “workplace democracy.” The bottom line is they don’t want to give up any power or money. If they want to declare that outright and try to defend it, more power to them. But they need to stop bamboozling the public with this Defenders of Democracy crap.

Not all businesses, however, are engaging in the lie fest. From Kaiser to AT&T, many businesses both massive and powerful (who could easily crush unions under the current law) adhere to the original principles of the NLRA and allow workers to organize however they want to.

My advice for Mark Udall:

Keep on keeping it real. You are the master of seeing both sides and, when necessary, seeing through both sides. Unions are good for business. A strong, well-paid workforce–not tax cuts for Wall Street–will fuel our economic recovery. EFCA is needed, but imperfect legislation. So perfect it.

Sign on to EFCA on the proviso that the Senate allow an up-or-down vote on a specific set of amendments that you propose. Don’t be afraid to point out when anyone–labor or the U.S. Chamber of Commerce–is either being dishonest or isn’t looking any farther than the hood ornament.

Now that we’re out from under the thumb of Bush, we have the opportunity to be bold, yet wonkish and comprehensive in that trademark Udall way. You’ve done it on energy. You’ve done it on wilderness areas. So do it again, even if it pisses off Tom Donohue. Bob Schaffer was an annoying little gnat in 2008 by comparison. The US Chamber was a grizzly bear with teeth and claws, yet you beat them decisively.

And if you make EFCA better for labor than it would be as drafted I am sure they can be coaxed aboard, despite their saber-rattling. It’s all about card check for them because they’re still reeling from Reagan, let alone the Bushes and Gingrich. Make them see beyond it.

But whatever you do, get out there quickly and make it known. The only people profiting from the uncertainty are the TV stations who are running the ads from both sides. And tell Bennet to do the same. Y’all are in the majority now. Lead by example.

Udall’s 2007 floor statement:

Mr. UDALL of Colorado. Madam Chairman, when I agreed to cosponsor this important legislation two years ago I made clear in a floor statement that I had serious reservations about weakening the secret ballot in union organizing elections. I believe American workers ought to make decisions about organizing unions in a way that is free from intimidation by labor or employers.

  It is because the National Labor Relations Board (NLRB) has largely failed in their responsibilities to protect the rights of American workers to organize that we even have to consider this legislation.

  Despite my reservations, therefore, I am persuaded that we ought to pass this imperfect bill so that the Senate may take up reforms in the labor-business relationship that will protect the rights of workers to organize, and at the same time preserve balance, fairness and objectivity in the way the National Labor Relations Board (NLRB) conducts elections.

  Before I get to the merits of this legislation, however, I want to register my disappointment that more amendments were not allowed for our consideration. The majority may not be well served by an open process that allows for deeper debate and the consideration of amendments, but our country would be better served. And on legislation with such far-reaching consequences for the balance between business and labor, I believe we are ill-served by not debating and considering more amendments.

  There are other improvements to this bill that we should have considered, and that I hope will be considered in the Senate. For example, I hope the Senate will consider amendments that address decertification procedures and deadlines for the NLRB to reach decisions. And I am hopeful the Senate will consider carefully whether this legislation should apply equally to small businesses. Perhaps the Senate will also consider the wisdom of a sunset provision for this legislation so that we can revisit it later–in order to determine whether it will have the desired effect for workers and for our economy.

  As I said in 2004, I am reluctant to endorse changes in current law that could be seen as preventing workers to make decisions in private about union representation.

  I agree with those who say a secret ballot process is preferable in most cases, and think that the burden of proof is on those who say that an alternative should be used.

  However, I have been and remain disturbed by reports of employers using heavy handed techniques to discourage workers from organizing in the first place and intimidating and even illegally firing workers who decide to join.

  But there is a real possibility that the NLRB won’t do that–which is the primary reason I support this bill.

  I am disturbed–I think we should all be disturbed–by the serious questions that have been raised about whether the NLRB is doing its job. And I am worried that recent NLRB decisions tilt too far toward allowing employers to intimidate union organizers.

  For example, the NLRB has decided that as workers are considering whether to form a union, an employer may explicitly “inform” them that workers in two other facilities lost their jobs after they decided to organize.

  I understand that in the case in question the regional NLRB director ruled this “clearly implied” the union was responsible for the firings and insinuated the same would happen to others who chose a union. In other words, the NLRB official closest to the case saw this as an example of an illegal threat of retaliation.

  But in a 2-1 party line vote–with two appointees by the current Administration in the majority–the NLRB overruled the regional director’s decision and claimed the memo “did not exceed the bounds of permissible campaign statements.”

  I think that decision shows just how far the playing field has been tilted away from a fair balance between employers and employees who want to bargain collectively.

  And the purpose of this legislation is to move back toward a fairer balance.

  Consider what the law says about ending–not establishing, but ending–union representation. Under the National Labor Relations Act, if 50% or more of the employees in a bargaining unit sign a petition that they no longer want to be represented by their union, the employer can withdraw recognition without an election.

  And if just 30% of the employees in a bargaining unit sign a Decertification Petition, the NLRB will conduct a secret ballot election on the question of ending union representation. Not a majority–just 30%.

  In other words, the current law makes it harder for workers to get a union than to get rid of one–and, as I just said, current policies of the NLRB add to the burden of people who want to have a union. I don’t think that’s balanced. Why should it be harder for workers to get a union into their workplace than it is for them to get the union out?

  This bill would not completely change that. But it would say that just as signatures of a majority of workers can end union representation, a majority of signatures could start it. And I think that is reasonable and equitable.

  Also, the bill would correct some of the problems with the current NLRB by changing parts of the law under which it operates.

  Current law says the NLRB must go into federal court and ask for an injunction against a union if the NLRB thinks there is reasonable cause to believe that the union has violated the law’s prohibition of secondary boycotts. Under the bill the NLRB would have to take the same action to enforce the law that protects workers against pressure to reject a union as it does to enforce the law’s limits on what a union can do to put pressure on employers. I think that is fair.

  And the bill also increases the amount a worker could collect if he or she has been unlawfully discharged or discriminated against during an organizing campaign or first contract drive and by providing for civil fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated the law. Again, I think these are improvements over the current law.

  Finally, I think some of the attacks on this bill have been exaggerated. For example, some have said it is intended to deprive workers of their right to an election. But under current law, elections are not always required–if a majority of workers sign cards saying they want to have a union, their employer can agree, and then the union is established without any election. So what the bill does is to deprive employers of the option of insisting on an election any time a majority of the workers have signaled that they want a union.

  Madam Chairman, this bill is not perfect, and in some ways I think it might have been better to take a different approach to the problem, with even greater emphasis on changing the law governing the operations of the NLRB rather than the card-check process. But I think it can, and should be improved before final passage by the Congress, and should go forward to the Senate for further and, hopefully more deliberate, consideration.

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