A letter to my mom about the Employee Free Choice Act

[This is email I sent to my mom, who asked why I thought the Employee Free Choice Act is better than secret ballots.]

Happy Chanukah to you!

And yes, the reviews of “The Spirit” movie have been dismal, to my delight.

I’m sorry that your cruise didn’t live up to hype.

As for the Employee Free Choice Act (EFCA), it’s important to understand that the Employee Free Choice Act won’t stop employees from having a secret ballot election. Under EFCA, if even a minority (30%) of employees prefer a secret ballot election, then that’s how it’ll go.

Under our current system, it’s effectively the employer who decides how unions are formed, card check or secret ballots. That choice should be up to workers, and that’s what EFCA would do.

Right now, employers routinely fire union organizers, force workers to sit through mandatory anti-union meetings, threaten to close down the workplace if a union is voted in, etc.. Imagine if Republicans got to do that in regular elections — we’d get to have a secret ballot, but first Republicans would get to remove citizenship from Democratic organizers, promise to shut down the government if Democrats win, have hours and hours of mandatory anti-Democrat propaganda that voters are compelled to attend (while Democrats wouldn’t have the right to respond or hold similar meetings), and so on.

I don’t think anyone would consider that fair or democratic. But that’s pretty much how union elections work.

The EFCA would let employees avoid that if they want to. Instead, if over half the workers want to unionize, employers have to recognize that. But if employees want to do a traditional election — or if, after the union is put in place, they want to vote the union out — they can still do so. EFCA just gives the employees that choice — and gives employees a way to avoid the abusive and unfair practices that US employers are using to fight unions.

The problem we are facing is unfair tactics and intimidation by employers. I can understand being concerned about the prospect of union intimidation, but that doesn’t seem to be an actual problem we’re facing in the real world. Quoting Jonathan Zasloff:

For 50 years, from the 40′s to the 90′s. the province of Ontario had a card-check organizing system, until a right-wing government killed it. (Labour law goes province-by-province in Canada). So what was the record there?

I used advanced research techniques unknown to many reporters, and called up Harry Arthurs of York University, Canada’s pre-eminent labour law scholar. Arthurs literally wrote the book on this stuff. And I asked him: what does the evidence show?

Arthurs answered that in all of his research about labour law complaints under card check, he could not find a single case where the employer complained of a union intimidating workers to unionize when they didn’t want to.

That’s right: zero. Zilch. Nada. Efes. Rien.

Arthurs did find two cases complaining of union intimidation in the card check process: but they were both in cases where two unions were competing against one another, i.e. both the Teamsters and SEIU were trying to organize a particular plant. That’s it.

This isn’t some obscure jurisdiction. It’s Ontario, the largest and richest province in the country. 50 years. A half a century. Zero.

If you think about it for a moment, it becomes clearer why this is so. Employers will have their ears to the ground to find out about such things, and if they have a credible claim, they will be able to call for a secret ballot decertification election. And the workers who are intimidated will take their revenge then. It’s just not in the union’s interest to do it.

I guess I’ll be seeing you in just a couple of weeks. I’m looking forward to it. Take care!

Love, Barry

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48 Responses to A letter to my mom about the Employee Free Choice Act

  1. 1
    Sebastian says:

    “Under EFCA, if even a minority (30%) of employees prefer a secret ballot election, then that’s how it’ll go.”

    As far as I can tell that is false. The way it seems to interact with the rest of the section that it amends sets up a situation where if the employees prefer a secret ballot, they can’t get it until a year after the union has formed and negotiated the first contract.

  2. 2
    Ampersand says:

    Hmmn. I’ll look into it and post what I find on “Alas” (and also email my Mom).

  3. 3
    minwage says:

    Ampersand – It is not nice to lie to your mother. When you read the act it states that if 50%+1 sign cards the NLRB is to recognize the uion. THAT MEANS THERE CANNOT BE A VOTE at that level of card signing! There could be 49% of a workforce that has no clue there is even a union getting these cards signed. YEA, that means there could be 49% of a workforce that will come to work one day, attend a company meeting, and be told they will have the privilege of paying union dues. In addition the union is not going to get 30% signed and then get everyone together and ask “if they would like to have a real vote”! Unions only get paid when they win and with authorization cards good for a year they will hold them, collect them and spring the uion on the unsuspecting when they have 50%+1.

    Why not quote the part of the act for your mother where it discusses what happens when the union gets a majority of cards? I am a nice person. Let me save you the trouble and share this quote from H.R 800 “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).”

    Your misleading quote “As for the Employee Free Choice Act (EFCA), it’s important to understand that the Employee Free Choice Act won’t stop employees from having a secret ballot election. Under EFCA, if even a minority (30%) of employees prefer a secret ballot election, then that’s how it’ll go.

    Why didn’t you mention the part of the act I mentioned?

    It is not nice to lie to your mother!

  4. 4
    Ampersand says:

    Minwage, I let your comment through because I think you raise good points.

    But if you can’t moderate your tone, from “obnoxious and condescending” to “civil disagreement,” you will be banned.

  5. 5
    PG says:

    Imagine if Republicans got to do that in regular elections — we’d get to have a secret ballot, but first Republicans would get to remove citizenship from Democratic organizers, promise to shut down the government if Democrats win, have hours and hours of mandatory anti-Democrat propaganda that voters are compelled to attend (while Democrats wouldn’t have the right to respond or hold similar meetings), and so on.

    To the extent these are problems, why don’t we address the problems directly instead of trying to circumvent them? That is, if employers abuse the secret-ballot election process, put in measures to stop and penalize abuses. Don’t throw out the secret-ballot baby with the abusive-employer bathwater. Pass legislation that protects unionizing workers from being fired; that requires employers to give equal time to pro-union propaganda on company time; etc.

  6. 6
    Brandon Berg says:

    Why is an election necessary at all? If 40%, or 10%, or even 3 of the employees of a company want to get together and do uniony stuff, then that’s a union. There’s not a law against that, is there? And if not, then what exactly is it that unions gain from having an election rather than doing it the way I described?

  7. 7
    Ampersand says:

    PG, there are already laws against firing organizing workers. Those laws are routinely ignored by workplaces.

    The problem is that we can’t keep a Republican administration from ever being elected again; and the Republicans have demonstrated that they will simply refuse to enforce the law in any meaningful manner. And, frankly, Clinton was only somewhat better.

    So none of the measures you propose (many of which are already on the books) will be meaningful, in the long run. No meaningful measure can be based on the idea that we’ll wait for corporations to act badly and then the government will punish the corporations, because that won’t happen.

  8. 8
    thebigmanfred says:

    Brandon Berg:

    And if not, then what exactly is it that unions gain from having an election rather than doing it the way I described?

    I assume they get the whole pie by having an election, whereas the scenario you described is more segmented. I think your approach is more in line with a capitalist approach though. Unfortunately with more segmentation a union(s) are less effective. The real power a union has is numbers. A company would likely fire a union 3 before a union with 3000.

  9. 9
    PG says:

    Brandon Berg,

    In non “right to work” states, such as Michigan, a recognized union can negotiate with the employer to establish a “union shop,” where all employees are required to join the union under penalty of being fired if they don’t join and keep up their membership dues. In “right to work” states, most of which are in the southern and western portions of the U.S., under state law no such agreement between the employer and union can be made.

    In the non-RTW states, a recognized union thus has a great deal more power than the kind of small associations that you’re describing. This also is why you’d have competitions between unions for which will be the recognized group, as described above: Arthurs did find two cases complaining of union intimidation in the card check process: but they were both in cases where two unions were competing against one another, i.e. both the Teamsters and SEIU were trying to organize a particular plant.

    And yeah, even aside from RTW, what thebigmanfred said: the threat of a strike by the majority of your employees is far more worrisome than the threat of a strike by three of them. The entire premise of a union is that the workers united can gain more than any individual employee would be able to negotiate for herself based solely on her own value to the employer.

    Amp,

    No meaningful measure can be based on the idea that we’ll wait for corporations to act badly and then the government will punish the corporations, because that won’t happen.

    If the government cannot be trusted to enforce the law when violations of it are brought to the government’s attention and can be proven through a preponderance of the evidence, then I’m unclear on why another federal statute is the solution to the problem. Suppose a workplace does unionize through card check and the employer refuses to recognize such a union. If the government won’t enforce the law requiring the employer to recognize card-check-formed unions, adding more laws doesn’t solve anything.

    The argument that the government won’t bother to enforce the law, and that’s why we need more laws, reminds me of RonF’s conviction that the California Supreme Court justices who interpreted the CA constitution differently than he does are just crazy rogues making stuff up to fit their own policy goals — and that’s why we need to amend the CA constitution. If the people charged with enforcing the law have shown that they don’t care about the law, more law doesn’t seem likely to help the matter.

  10. 10
    Brandon Berg says:

    PG/thebigmanfred:
    A union still doesn’t need an election to represent a majority of the employees; if 75% of the employees go to the union organizer and ask to be represented, then the union represents 75% of the employees, election or no. And in non-RTW states, a union could negotiate a closed shop with or without an election, as long as it has enough bargaining power.

    It seems to me that this the whole election business is a bunch of unnecessary red tape. But the unions are willing to go through with it anyway, so there must be something I’m missing. My guess is that the election is the bar the government requires unions to meet before it grants them certain privileges, but it’s not clear to me what those privileges are.

  11. 11
    Sailorman says:

    I think the point of a secret ballot is that BOTH sides can exercise their political power in a manner that can force people to agree to things they don’t want. We know corporations can be–and often are–very unpleasant . So are unions.

    As usual, I think that absent other information we should operate on the default assumption: Corporations and unions are all run by people. People in power (whether union or corporate) will tend to act to keep power; people will do a lot of things to get it if they don’t have it.

    Secret ballots are at heart a manner of attacking overt power, because they prevent powerful people from identifying and oppressing those who do not support them. In that respect they are probably a more accurate marker of what people really think. You can tell your employer “I hate unions!” and walk into the booth and vote yes; you can tell the organizer “I’m on your side!” and walk into the booth and vote no. You don’t have to decide between openly supporting the union (but getting fired if no union gets formed) and openly opposing the union (but getting screwed if the union gets formed.)

    Whether it is applied to formation or breakup of a union, I think that generally speaking secret ballots are an excellent method.

    I also think it is very suspicious when people oppose them. Why NOT have secret ballots? Why NOT require them for elections? Could it be that union organizers are, er… human? Could it be that like other people seeking power they want to be able to use groupthink and/or intimidation to get their way? Mind you, the field isn’t level. But fighting secret ballots is leveling it in the wrong direction.

  12. 12
    PG says:

    Brandon Berg,

    It seems to me that this the whole election business is a bunch of unnecessary red tape. But the unions are willing to go through with it anyway, so there must be something I’m missing. My guess is that the election is the bar the government requires unions to meet before it grants them certain privileges, but it’s not clear to me what those privileges are.

    Read up on the Taft-Hartley Act (which is what allowed some states to pass right to work statutes). It limits unions’ freedom of action and in conjunction with the National Labor Relations Act (which it amended) outlines how to obtain union status. There’s an antitrust problem with unions because they create a conspiracy to fix the price of labor; unions are statutorily exempt from most antitrust law, but in order to benefit from the exemption, I think they have to follow federal law on the procedure to become a union.

  13. 13
    PG says:

    Incidentally, it looks like the ultimate legislation is going to be what I wanted to see: addressing head-on the problems of letting employers delay the unionization vote so they can pressure employees, instead of addressing the problem by avoiding a vote.

  14. 14
    FurryCatHerder says:

    PG:

    Incidentally, it looks like the ultimate legislation is going to be what I wanted to see: addressing head-on the problems of letting employers delay the unionization vote so they can pressure employees, instead of addressing the problem by avoiding a vote.

    Avoiding it how? Management bringing the union in from the start, or bribing employees to keep it out?

    When I was a welder the steel workers union was kept out by raising our pay so it was just under union scale, but not so far below that organizing was beneficial.

    “Organized” shouldn’t be so freakin’ hard to achieve. But then, I’m a union organizer — I’m biased ;)

  15. 15
    PG says:

    Card-check is a way to avoid having an actual election.

  16. 16
    FurryCatHerder says:

    PG,

    Ah, okay — you mean “avoid” in that sense. I’ve talked to people about joining CWA Local 1701 (the IBM union) and they are afraid to even THINK about joining. IBM is just that anti-union. So, yeah — card-check is the only way IBM is ever going to get organized. Short of sending so many jobs to India and China that the last 10 employees in the States are all union members …

    What I thought you meant was management not being a bunch of jerks and just organizing from the start, or bringing the union in today. When I first started my company, once all the state and federal paperwork was in order, one of the next things I did was contact the local Communication Workers of America group and talk to them about organizing once I started hiring.

  17. 17
    FurryCatHerder says:

    PG @ 12:

    There’s an antitrust problem with unions because they create a conspiracy to fix the price of labor; unions are statutorily exempt from most antitrust law, but in order to benefit from the exemption, I think they have to follow federal law on the procedure to become a union.

    That’s true for Trade and Craft unions, such as the IBEW (I work with guys from local 520 a lot), but not true for Professional unions, such as college professionals in CWA.

    And I think that lumping unions into some kind of monopoly basket (especially calling it a “conspiracy”) is anti-union — a union is nothing more than the voice of employees to corporate management. You wouldn’t say that a company has a “monopoly” on “fixing” wages to employees, when in fact they do. Absent a union, the company can decide who they pay what. Right? Calling an employee group a “monopoly” for trying to break up management’s monopoly is really being dishonest. Unions just level the playing field, put them on a more equal footing with management.

  18. 18
    PG says:

    Your comparison is valid for company-specific unions, like the Japanese auto unions. That is not what we have in the US, where unions are industry-wide. When all the employers get together to set wages, that is a conspiracy and an illegal monopoly unless specifically exempted from antitrust law, as pro baseball and medical residencies are.

  19. 19
    FurryCatHerder says:

    PG,

    Even the UAW doesn’t negotiate industry wide. What the UAW has historically done is select a manufacturer — and I understand they did it in rotation — to target for negotiations. Once that contact was negotiated (emphasis on the word NEGOTIATED), the contract was taken to the other manufacturers for approval or further negotiation.

    In all cases, the manufacturers retained the ability to accept the contract as offered, make modifications, or reject the contract. The specific remedies after a contract is rejected include labor board arbitration (NLRB), lockout, strike, hiring non-union workers, further negotiation, etc, depending on the laws in effect in the jurisdiction.

    I’m not aware of any state, including closed-shop states (I’ve lived in open-shop states as long as I’ve had a job, so I admit to being ignorant of closed-shop states) where a union has unilateral power. What I do understand of NLRB reviews in closed-shop states is that they don’t involve the question of “price-fixing”, but of fair versus unfair negotiations. If one auto manufacturer closes for retooling for 4 weeks, and another auto manufacturer closes for only 2 weeks, the NLRB could agree that a difference in wages was appropriate. The only requirement I know of is USC 29, Chap 7, Sec 158 (d) which requires “good faith” negotiations. “Price fixing” may or may not be “good faith”, depending on the circumstances. Additionally, it may even be desirable from an employer perspective in order to prevent worker flight.

  20. 20
    PG says:

    FCH,

    The difference between open- and closed-shop makes a significant difference for employers who face difficulties in negotiating with the union, particularly in the ability to hire non-union workers. Moreover, I’m not sure what you consider “good faith” negotiations required before a strike can occur: would the UAW’s going on strike on Sept. 14, 1970 two weeks after receiving GM’s proposal for a contract renewal be “good faith,” particularly when the strike was limited to GM (even though Ford and Chrysler hadn’t presented their renewal proposals) in order to put the greatest level of pressure on the single company?

    The existence of an industry-wide union in conjunction with a “closed-shop” state is important because it means in a situation such as the above, GM could hire neither unionized workers away from its competitors (because those workers were forbidden to compete for the GM strikers’ jobs) nor non-unionized workers (because those workers were forbidden to take auto jobs at all).

    In contrast, Japanese auto unions are company-specific and thus invested in the success of the individual company. There is a Confederation of Japan Automobile Workers’ Unions, but it is made up of individual unions that make individualized decisions about how much to request in compensation, such that there may be non-negligible differences in compensation in different companies. (For example, Mitsubishi’s union did not demand a wage increase this spring.) The workers do not think of themselves as generic “auto workers,” but as Toyota, Honda, Nissan, Suzuki, Mitsubishi, Mazda, Subaru or Isuzu workers who take a competitive sense of pride in “their” company’s products. Strikes are close to nonexistent because workers don’t want to disadvantage “their” company relative to the other companies.

    It was the America occupation that originated these unions in Japan in the first place, but perhaps due to cultural differences (including that of a stronger welfare state in Japan that provided for health care and pensions), the Japanese unions eventually rejected the industry-wide and strike-prone union model they originally got from the U.S.

  21. 21
    FurryCatHerder says:

    PG,

    Ah, your beef is with union SOLIDARITY. The whole point of a union is to counteract the power of management. The primary tool for doing that is Solidarity. You know, “Workers of the world unite!”

    The problems with GM, Ford and Chrysler have nothing to do with the UAW and everything to do with management. This is a big difference between Japan auto manufacturers and American manufacturers — the management style in the States is very anti-worker to start with. The principle objective is productivity, not worker well-being, and the style tends to be very top-down.

    In contrast, Japanese culture tends to be more consensus building and Japanese management style is more enabling and less dictating. Since the objective of the Trade Union is to counteract management power, there’s simply no need for an American-style Trade Union in that environment. In Japan, cross-training is common and time is made for it by the company. In the States, cross-training is far less common, with workers being laid off when their skills are outdated, and new workers brought in (IBM’s favorite tactic under Sam Palmisano).

    What you seem to be advocating is for unions to be abolished, or sharply curtailed in power. Not very friendly to working-class people.

  22. 22
    PG says:

    FCH,

    OPEC has solidarity too, or at least that’s the ideal: we oil-producing countries will stand together to maximize our power relative to the oil buyers.

    You seem to have gone off course from the original line of discussion, which is not UNIONS: Good Or Bad?, but rather, your claim @17 that unions do not work to fix the price of labor.

    I think I see a recurrent problem here: you take something I said, apply your own values to it, and then make a normative claim about what I believe. So in this thread, it has been:

    PG says @12, “There’s an antitrust problem with unions because they create a conspiracy to fix the price of labor.”

    FCH believes, All price-fixing conspiracies are bad.

    FCH tells PG that therefore “What you seem to be advocating is for unions to be abolished, or sharply curtailed in power.”

    When in fact, I never have said that unions should be abolished or sharply curtailed in power. Indeed, I resurrected discussion in this thread to say that I was happy that Congress would make it easier to start a union while still retaining mandatory elections on the question.

    Or in a past thread,

    PG says, “It is reasonable to be worried that following Barstow’s suggestion of criticizing blacks and Latinos for their Prop. 8 vote will be deemed racist.”

    FCH believes, If someone thinks that something I’d said is worth considering will be deemed racist, that person is trying to convict me of racism.

    FCH tells PG that therefore, “You are trying to convict me of racism.”

    When in fact, PG never said that any person was racist, only that certain acts or speech might be deemed racist.

    If this is going to be the pattern of our discussions, I think it is best not to try to have them anymore.

  23. 23
    FurryCatHerder says:

    PG,

    Unions don’t fix the price any more than Management fixes the price. You didn’t respond to that comment by me, so don’t go blaming me for whatever problems it is you’re having today because you want to keep pretending that unions are some kind of price fixing conspiracy.

    And being pro-card-check doesn’t get you around making anti-union comments.

    If you’d like my version of what goes on, here it is –

    PG — “This is true because I say so.”
    Me — “Uh, no, it isn’t true and here’s why — X, Y, Z”
    PG — “This is still true because I say so.”
    Me — “No, really — not all true, here’s more reasons why not: A, B, C”
    PG — “You believe such-and-such.”
    Me — “Where did I say that?”
    PG — “This is pointless.”

    Have you ever belonged to a union? Worked in a union shop? Tried to organize a shop? Try your “Unions are a price-fixing conspiracy” around some AFL/CIO brothers and sisters and see how far you get with that.

  24. 24
    PG says:

    FCH,

    Notice that I actually quote and cite comments, whereas you do not. It doesn’t give a ton of credibility to your claims that I have said something, if you can’t actually point to where I said it.

    I explained that when you have everyone in a relevant market agreeing on what the price of something will be, that is price-fixing. You claimed that it’s not price-fixing because the union negotiates with management about what the labor contract will be. Negotiation does not negate price-fixing. Do you believe that it would be legal under U.S. antitrust law for all of the employers in the auto industry to band together to negotiate with employees, or do you think there’s a reason that the union negotiates with each different employer individually? Management at each individual company negotiates with the *entire* union for the price of the union members’ labor.

    Your ABCs and XYZs are devoid of reference to anything that would back your claims that there is no price-fixing issue here. The only citation you have made is to USC 29, Chap 7, Sec 158 (d), which has nothing to do with antitrust law. The comment of mine with which you took issue was @12, where I stated that unions are statutorily exempt from antitrust law (under the Clayton Act). If there were no possible restraint-of-trade problem with unions, why would it have been necessary to exempt them from antitrust law?

  25. 25
    La Lubu says:

    To clarify: Trade and Craft unions do not set wages “industry-wide”. I belong to the IBEW, and can guarantee you that electricians in San Francisco take home much more pay than I do (in central Illinois). Our wages are negotiated according to Local jurisdiction.

    I don’t quite understand how that can be called “price fixing”, though. The wage and benefit package negotiated by the IBEW with the organized contractors is not the price you will see on your receipt as a customer of a contractor. The contractor sets the final price for what he or she charges the customer for the work being done. (so, when you see “$80/hr” as the charge for labor, trust me—that isn’t what we’re taking home).

    Is it “price fixing” to the contractor? How so, when the contractor chooses whether or not to be signatory to the IBEW contract?

    One great advantage I see as a union worker is the transparency of the wages and benefits. Especially for women and others of color—in nonunion environments, white men are (almost always) paid more than everyone else. And without a union contract, there is no way to determine who is being paid what, or what qualifies a person for a certain size paycheck. No transparency, and that’s the point. Subjectivity (rather than written, open-for-observation-by-every-employee, objective standards), allows for discriminatory pay scales. Funny how equality of pay based on objective standards is “price fixing” of labor, while subjective pay scales are somehow….not, despite the real-world effect of “fixing” a lower price for the labor of women and others of color in practice.

    (which isn’t to say that you’re in favor of such paycheck differentials, PG. just saying…unions are exempted because the contract between the employer and employee is still voluntary, just like it is on an individual basis in the nonunion environment. it’s not a “monopoly.”)

  26. 26
    FurryCatHerder says:

    PG writes:

    The comment of mine with which you took issue was @12, where I stated that unions are statutorily exempt from antitrust law (under the Clayton Act). If there were no possible restraint-of-trade problem with unions, why would it have been necessary to exempt them from antitrust law?

    Did you READ what the section you quote even says? Here, for the readers –

    The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws. (USC 15, Chapter 1, Section 17)

    It doesn’t say anything like “And gee, a union is such a hot idea that we’re going to allow them”, it completely DENIES that “labor” is a commodity, and price fixing applies to commodities. Setting the price of apples doesn’t imply “fruit price fixing” — “Apples” are a commodity, “Oranges” are a commodity. My labor is NOT a commodity.

    And so people are clear on the concept of “price fixing” –

    price fix·ing also price-fix·ing (prsfksng)
    n.
    1. The setting of commodity prices artificially by a government.
    2. The result of an unlawful agreement between manufacturers or dealers to set and maintain specified prices on typically competing products.

  27. 27
    PG says:

    La Lubu,

    I should clarify what I mean by “industry-wide”; I mean that prices are set for the relevant market. E.g., if two sellers agree that they will sell their product for $X in the NY metropolitan area, then they are engaged in price fixing, a conspiracy in restraint of trade. Sellers are supposed to engage in price competition, but the temptation is to agree amongst themselves that in order to avoid ruinous undercutting of each other’s prices, they’ll instead just both sell at $X. Neither can hope to beat out the other, but then again neither has to fear going out of business.

    People who are selling their labor can agree to do the same thing. If I am competing with another person for work, then one way in which I can out-compete him is by offering a lower price for my labor. He says he’ll work for $10/hr? Fine, I’ll work for $9.50/hr. We can thus keep undercutting each other until we hit the floor of the federal minimum wage. (If the employer is unscrupulous, we can go below even that.) We’re overall better off if we agree that instead of competing with each other, we’ll work together: neither of us will accept the job for less than $10. Expand the “we” to everyone in our geographic area with the relevant skill set, and individual employers will have to pay at least $10 in order to hire anyone.

    As for the benefits of unions to women and PoC, that may be true today. I admit that I have gotten most of my information on this from 1970s-era practices, such as that described by Justice Ginsburg in her recent interview when she noted that the union contract at Columbia university provided that if jobs needed to be cut, maids were fired before any janitor was.

    Q: It’s true, it’s a very good strategy. He was a very sympathetic plaintiff. And it was important that the city had already given the test that the white firefighters scored high on and the black firefighters did not.

    JUSTICE GINSBURG: Yes. And the city weights the written and oral parts of the test 60-40, and says: That’s what the union wanted, it’s been in the bargaining contracts for 20 years.

    I don’t know how many cases there were, Title VII civil rights cases, where unions were responsible. The very first week that I was at Columbia, Jan Goodman, a lawyer in New York, called me and said, Do you know that Columbia has given layoff notices to 25 maids and not a single janitor? Columbia’s defense was the union contract, which was set up so that every maid would have to go before the newly hired janitor would get a layoff notice.

    I suspect Ginsburg was feeling particularly concerned about unions’ enabling discriminatory practices, having come off a recent case, 14 Penn Plaza LLC v. Pyett:

    After 14 Penn Plaza, with the Union’s consent, engaged a unionized security contractor affiliated with Temco to provide licensed security guards for the building, Temco reassigned respondents to jobs as porters and cleaners. Contending that these reassignments led to a loss in income, other damages, and were otherwise less desirable than their former positions, respondents asked the Union to file grievances alleging, among other things, that petitioners violated the CBA’s ban on workplace discrimination by reassigning respondents on the basis of their age in violation of Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. The Union requested arbitration under the CBA, but after the initial hearing, withdrew the age-discrimination claims on the ground that its consent to the new security contract precluded it from objecting to respondents’ reassignments as discriminatory.

    The 5-4 majority of the Supreme Court held that the CBA (Collective Bargaining Agreement for Contractors and Building Owners) must be enforced in its requirement of binding arbitration, meaning that plaintiffs could not file a claim under the ADEA. Ginsburg and the other liberal justices dissented, disagreeing with the majority’s holding “that unions can bargain away individual rights to a federal forum for antidiscrimination claims.”

  28. 28
    PG says:

    @26,

    Yes, that would be the exemption, by declaring that what the union is selling, labor, is not to be deemed a commodity or article of commerce within the meaning of the antitrust laws. However, if you look at the constitutional justification for a federal minimum wage, which is done under the Interstate Commerce Clause, you’ll discover that for the purpose of setting a minimum wage, Congress is happy to deem labor to be within interstate commerce. That’s how legal exemptions often are written: by defining something as not being part of what is regulated, when prior to the exemption, it WAS part of what was regulated.

    Price-fixing isn’t solely for “products,” in the sense of goods like apples and oranges. A service, such as my representing you in court, is also a “product” that falls under the antitrust laws. I can’t get together with my friends at Skadden and other firms and say that the going rate for representation in court by a 6th year associate from any top tier law firm in NY will be $600/hour. Our labor, when sold to the public, is deemed a product. Nor can all the law firms in NY get together and decide that they will limit the salary + bonus they’re willing to pay graduates of top tier law schoos to $200k a year. Any specific firm of course may set what its salaries will be, but it cannot conspire with other firms to set those salaries.

  29. 29
    FurryCatHerder says:

    PG,

    Labor is simply not a commodity. I’m sorry this is difficult for you to grasp, but labor isn’t.

    Since La Lubu’s from the IBEW, I’ll use an IBEW example. A shop can hire more or less skilled electricians, in whatever quantity they can fill the slots based on their own choices and business model. The more skilled workers — Master Electricians — get paid more. They also produce more. The less skilled workers — Apprentice Electricians — get paid less. They also produce less. Somewhere in between are Journeymen. A shop that wants to compete on price might choose to hire the maximum number of apprentices to journeymen. The only thing the union membership controls, as it were, is the wage the membership — the individuals who make up the union — wishes to be paid.

    Once the wage is set by the union members (“labor”), the shop (“management”) controls how productive / profitable the members are. If it’s the workers’ responsibility to purchase their own tools, under the union contract, a shop can decide to purchase quality tools (a pair of 9″ Klein lineman’s pliers go for $60 and up. Cheap import junk, much less.) to improve productivity and profitability. But the WAGE is set by the individual members of the union through the collective bargaining and contract ratification process. The union isn’t like Intel selling computer chips, or Chiquita selling bananas.

    Where you seem to be confused is that the “Union” is not some business that is selling a product. It is an association of individuals. You and your law school friends can all decide y’all won’t work for less than $200K as 6th year associates — you’re not a business selling a product, you’re individuals setting a price for your own mutual benefit.

    The other area where you seem to be confused is that there is some “UNION”. In areas with a healthy union population, different unions DO compete. Consider my business — it straddles the traditional domain of the CWA and the IBEW. As a business owner, I could choose which union I want to negotiate with. If, G-d willing, business takes off to the point that I have a large number of workers in both domains, both unions could be present — CWA for techie jobs, IBEW for electrical jobs — in my shop.

    I don’t know where you get your union information from, other than case law, but most of it seems to be very anti-union and anti-worker. Given the amount of propaganda from those two camps, I’m not surprised. A worker is an individual human being, not a computer chip, piece of fruit, barrel of oil or anything else.

  30. 30
    Jake Squid says:

    Labor is simply not a commodity. I’m sorry this is difficult for you to grasp, but labor isn’t.

    Can you explain this a little more? How is labor not a commodity? In what ways do the differences of labor from, for example, soft drinks disqualify labor from being a commodity?

    I understand how labor isn’t a material good in the same way as a soft drink, but I’m not sure I understand why a soft drink is a commodity but labor is not.

  31. 31
    Sailorman says:

    FCH,

    You are missing the point PG’s comment.

    Labor is most assuredly a commodity as defined by Congress with respect to the interpretation of most federal laws related to interstate commerce (see, e.g., federal minimum wage laws.)

    Labor is most assuredly not a commodity as defined by Congress with respect to the interpretation of federal antitrust regulations (see, e.g., the sections cited above.)

    The definitions depend on the context.

    Similarly, there are probably economists who believe labor to be a commodity. Whether or not you agree with this morally, there may be instances when operating on that assumption makes sense for a particular analytical purpose. When reading their articles, you would usually need to accept their definition for the article to make sense.

    And there are economists who believe the reverse, and you would usually need to accept their definition for their article to make sense. Whether or not you agree with this morally, there may be instances when operating on that assumption makes sense for a particular analytical purpose.

    Also, the existence of labor as a commodity also probably depends on a great deal on the job in question. Less skilled labor is more fungible and therefore more susceptible to being treated like a commodity.

    But in any case, i don’t think the “it just is” argument is going to do much to convince PG.

  32. 32
    PG says:

    FCH,

    Labor is simply not a commodity. I’m sorry this is difficult for you to grasp, but labor isn’t.

    Evidently it was difficult for Marx to grasp too. Not to mention the economists to which this Teamster analyst is responding. Boy, we are a mush-brained lot.

    The other area where you seem to be confused is that there is some “UNION”.

    I have been using the example of the UAW because it is the one with which I am most familiar (I have family members who worked for two of the Big Three in various capacities). Is there a competing union I can join in order to work on a Ford assembly line in Michigan? If not, is the lack of competitors to the UAW a sign that the Midwest lacked a health union population, or that some industries may be prone to competitive unions and others are not?

    “A worker is an individual human being, not a computer chip, piece of fruit, barrel of oil or anything else.”

    You seem to have difficulty discerning the difference between a worker’s individual choice to offer his labor, and a human being sold as a slave. I cannot sell even myself (13th Amendment), but I can sell my labor. My labor is a commodity in the market. I can exchange it for money, or barter it for goods or others’ services. My father has traded his labor as a physician for fish and farm produce when an uninsured patient has no cash to pay him.

    An airline is not selling you a thing, it is selling you the collective labor of its employees in conjunction with a capital investment: the pilot’s and flight attendants’ and ground controllers’ work plus the plane. Yet even though I walk away with nothing in hand, I still have purchased a commodity. And airlines are subject to the antitrust laws. So are lawyers. So are doctors. All of this labor cannot have a price set among those who are selling it to the public. The only difference between the lawyers/doctors in private self-owned practice and the union is that the former sell directly to the ultimate consumers of their labor, rather than to an intermediary.

  33. 33
    FurryCatHerder says:

    PG writes:

    Robert E. Lucore1
    (1) International Brotherhood of Teamsters, 20001 Washington, DC

    Abstract Labor is not a commodity, though there are those who would have it treated as if it was one. Antitrust is probably a futile exercise when applied to business, it would be dangerously destructive to apply it to labor. The raison d’Être of unions is to remove wages from competition and that is a socially necessary purpose. Of course, events of the last several decades have already weakened unions substantially. In their weakened state, unions are less able to accomplish this social purpose, and workers have suffered as a result (for examples see Mishel et al., 1999). Why weaken unions further now?

    The author is Senior Research Analyst for the International Brotherhood of Teamsters. This paper represents his own views and not necessarily those of the Teamsters.

    As I said, you’re clearly anti-union. Which perspective is correct — the subjective experience of labor or the objective claims of economists? Is my perspective, as a union member and organizer, more properly centered subjectively than yours, as a lawyer with apparently no ties to Labor?

    If I, as a big queer, say “That is homophobic!” and you, as a non-queer (you seem to be, based on your posts), say “Well, a lot of non-queers disagree with you on that point, furthermore, there are laws which say that the behavior isn’t homophobic, so I guess you guys need to discuss this a bit more.” Better example?

    As regards your question about the UAW and competition — don’t live in the frozen north, don’t know much about the UAW. Still doesn’t make your claim that the UAW sets the industry-wide labor rate true, though. Let’s work on getting you to admit you’re wrong about the UAW, and union “price fixing” in general, okay?

  34. 34
    Jake Squid says:

    That’s a terrible comparison. One’s experience within or without organized labor unions is in no way analagous to your homophobia example. One need not be a union organizer or union member to be able to say whether labor is or is not a commodity.

    As I said, you’re clearly anti-union.

    I’m as pro-union as anybody I know and PG does not seem anti-union to me based on this thread, much less “clearly anti-union.”

    Also, what Sailorman said regarding whether or not labor is a commodity for the purposes of this discussion.

  35. 35
    PG says:

    FCH,

    Let’s try this one last time. As I’ve already reminded you @22, the genesis of this discussion was your disagreement @17 with my statement @12 that “There’s an antitrust problem with unions because they create a conspiracy to fix the price of labor; unions are statutorily exempt from most antitrust law, but in order to benefit from the exemption, I think they have to follow federal law on the procedure to become a union.”

    If we are going to pull rank here, I think as someone with degrees in both economics and law, with a special focus in both on antitrust, I might know a little bit more than you do about the subject. This isn’t a question about whether unions are good or bad, though you keep trying to make it one and keep claiming that if I’ve said unions engage in a form of price-fixing, that means I’m anti-union. This isn’t a question about whether you feel like labor is treated as a commodity under the law with a specific exemption through the Clayton Act, or whether the guys down at AFL-CIO feel like unions engage in price-fixing on their labor.

    I made a statement about the law, you disagreed with it, I explained why it was so, you continue to assert that if I am making such a statement about the law, I must be anti-union. If you cannot distinguish a legal argument from a moral/policy one, you’re going to have a very difficult time discussing things with me because I very frequently am making a legal argument that may not accord with my moral/policy preferences. (E.g., I strongly support legalizing marijuana, but I also think the Supreme Court came to the correct legal conclusion in Raich, both in upholding Wickard and in assessing how “medical” marijuana has crept into commerce.)

  36. 36
    PG says:

    Also, this rule:

    If I, as a big queer, say “That is homophobic!” and you, as a non-queer (you seem to be, based on your posts), say “Well, a lot of non-queers disagree with you on that point, furthermore, there are laws which say that the behavior isn’t homophobic, so I guess you guys need to discuss this a bit more.” Better example?

    apparently doesn’t apply, in your view, when a PoC says, “That is racist!” Instead, it’s “trivializing” actual racism not to take a challenging, critical, skeptical viewpoint. So am I “trivializing” homophobia if I accept your perspective that something is homophobic?

    Something I learned in a few different classes / lectures / seminars on anti-racism work — a knee-jerk reaction calling trivial things “racist” is itself racist behavior. It trivialises actual racism and actual racism isn’t a trivial matter. Likewise, instantly agreeing with People of Color — also racist.

    You see, when I don’t “instantly agree” with someone who identifies with a union organizer that she must be right that there was never a need to exempt unions from antitrust law at all, I’m actually just trying to avoid being called anti-union.

  37. 37
    FurryCatHerder says:

    Jake,

    Characterizing labor unions as an except conspiracy to fix prices is EXACTLY the kind of rhetoric used to discredit unions.

    Unions care a fuck load more about things besides the number of dollars per hour a worker earns. And treating union contracts as being just about dollars is exactly the commoditization of Labor that Management wants to engage in.

  38. 38
    Ampersand says:

    FCH, please avoid condescending comments like “I’m sorry this is difficult for you to grasp….” and “where you seem to be confused” and “Did you READ what the section you quote even says?”

    Thanks.

  39. 39
    PG says:

    “The raison d’Être of unions is to remove wages from competition and that is a socially necessary purpose.”

    That bastard analyst working for the Teamsters! I had better notify them that they have an anti-union mole in there, spreading propaganda about how their raison d’Être is to remove their workers’ wages from competition. Clearly anyone who recognize the fact that part of the point of a union is to prevent workers from undercutting each other’s wages by competing based on price of labor must be anti-union. QED, as FCH would say.

  40. 40
    FurryCatHerder says:

    PG,

    You’re a work of art, you really are. You don’t want a discussion — you want to go on some kind of attack-dog mission.

    Okay. The relevant law — what you quoted — says that labor isn’t a commodity. It really says that, right? That wasn’t enough, now you want to say that unions “just are” these price fixing conspiracies — the same language used to discredit unions. You can’t learn this being some rich lawyer. This is one area where Mao had it right — send the intellectuals to the rice fields.

    Ms. Barstow — her cartoon — wasn’t even about race. It was about gay rights activists. My comments — not even about race. When I asked if it was racist to relate facts, what was the response? Is talking about facts — statistically valid polling and survey data — is that racist?

    But see, here’s the thing — are blacks being denied jobs, housing, security in their persons because queers say “Hey, what’s up with not backing Prop 8?” No. Are union members being denied jobs, housing, security in their persons because anti-union people mischaracterize them? ABSOLUTELY.

    Racism is NOT NOT NOT saying “African Americans, on average, support GLBT rights less than Whites.” I can stand on a street corner and say it over and over again and it isn’t racist. Because racism is about HARM and the power to cause HARM. It is not about bad feelings or pointing out some dirty little secret. Siding with the heteropatriarchy cannot, under any theory I can imagine, result in harm. And since queers are situated power-downn in the heteropatriarchy, how in Fuck’s name is a queer standing on a street corner saying “African Americans, on average, support GLBT rights less than Whites.” going to cause harm? What, the heteropatriarchy is suddenly going to become queer-friendly just to screw over those even more oppressive-on-average blacks?

    Saying “African Americans, on average, support GLBT rights less than Whites.” is akin to being fired, denied employment, physically threatened, harassed and intimidated IS the kind of trivialization that I was discussing. Because Queers and pro-Union people experience those things. I’ve yet to here instance of an anti-GLBT person of color experiencing those things, at the hands of a Queer or Union member, simply because they oppose same-sex marriage.

  41. 41
    Sailorman says:

    Is this some sort of “Angels and Demons” preview? You know: where something is either Perfect and Beyond Reproach, and even Beyond Any Potentially Negative Characterization (“Angelic,” in case y’all didn’t guess), or is Horrible, Unbelievable, and Anti-Everything-Good? (i.e., “Demonic.” Did I need to even say that?)

    Unions can be an overall good thing even if they have aspects which are problematic, or questionable, or which need to be balanced against their benefits. It makes no sense to treat a discussion of one single aspect of unions as an overall condemnation.

    One could believe that unions engage in price fixing… and still support them because of their other benefits. Or not. Hey, could it be? Are we really capable of taking conflicting information and resolving it? how… human of us.

    FCH said:
    Which perspective is correct — the subjective experience of labor or the objective claims of economists?

    Both. Or neither. Depends on what you mean by “correct.”

    If you believe economists to be objective (neither biased against or for unionization) then they are more likely to come up with a “correct” answer, I think.

    Is my perspective, as a union member and organizer, more properly centered subjectively than yours, as a lawyer with apparently no ties to Labor?

    No. Why should it be? When discussing something which affects unions, and union members, and the economy, and government regulation, and antitrust… why should the only allowable perspective be that of a union member or organizer? Why not the employer, or customer, or legislator, or consumer?

    We all have ties to labor, as soon as we buy or hire or apply or deal with the economy. I have kids in school who get affected by teachers unions (for good and for bad); my house wiring and the cost to fix things are affected by electrical unions for good and bad; same with the cars I buy and the taxes I pay and tons of other stuff I do.

    It is crazy to think that unions operate only on Angelic terms, with no fallout from any of their effects. Unions operate by changing the structure of what is permissible to do; there are always going to be some negative effects for someone else.

    It’s especially important to remember that unions are protectionist. They operate to serve their members, and ONLY their members. Not the public. Not the employer (except as it includes self-interest of the members.) Not future union members. Not independent contractors in the same field (indeed, those proletariat workers are treated as competitors and the union directly harms them by its actions.)

    Such a one-track plan makes perfect sense from a union perspective, but it doesn’t incline me to cede you the only seats at the table. Fox, henhouse, and all that.

  42. 42
    PG says:

    FCH,

    Even after Sailorman reiterated this point about how exemptions are made (you write the new law [Clayton Act] to alter how the original law [Sherman Act] works in order to provide an exemption by defining something away from being covered by the original law), you continue to insist that labor cannot be a commodity, ever ever, and that there cannot be price-fixing because labor isn’t a commodity, ever ever. OK. I’ll leave it there. And without the personal insults.

    With regard to your statements about African Americans in CA: kyriarchy.

  43. 43
    Notacookie says:

    Here’s maybe a clearer example of “price fixing”.

    I used to be a TA at UC Berkeley. That means I was covered by a union contract between the University of California and the UAW. (Local 2865). The union contract fixed TA pay, across the whole UC.

    This meant that I was unable to negotiate pay with my department. I found this very irksome. Union management was elected system-wide, which meant that the students in my department would be bound by the contract even if neither we, nor our department administration wanted to be. Indeed, even if not a single person at UC Berkeley was pro-union, we’d still be covered if the other schools outvoted us.

    To make things worse, our union management were elected campus wide. And only the incumbent management had the resources and funding to mount a campaign. Good luck trying to mount a campaign across an entire state as a grad student, when your opposition is the incumbents! So we felt powerless to even influence the bargaining.

  44. 44
    FurryCatHerder says:

    PG,

    Okay, so in addition to being anti-union and anti-worker, you’re also for busting unions by murdering union workers — the effect of government intervention into strikes such as the Pullman Strike of 1894, when the courts issued an injunction ending the strike under Sherman. The cause of the Pullman Strike, for those unaware, is that Pullman cut workers wages 30%.

    The Sherman Anti-Trust act was not written to prevent unions as some form of conspiracy to fix prices. It was supposed to prevent situations where ownership of multiple companies was held … in trust … by a single organization. That’s where the “Trust” in “Anti-Trust” comes from — preventing these corporate trusts. The other concern was with companies (a union isn’t a “company”) creating agreements that would artificially raise the price of goods or services — cartels and the like.

    The application of Sherman in the Pullman strike was a complete misapplication of the law, based on its legislative history. I’d have thought that the language in Clayton made it clear that Sherman didn’t apply, but I was wrong. Clayton does not say that labor is a “commodity”, and then make an exception (see the exceptions make for Public Utilities), it says that the law just plain doesn’t apply, period. Compare that to Public Utilities, which are a heavily regulate natural monopoly in some markets, and how they are handled in the law. The law doesn’t say that a natural monopoly (say, an electric company) isn’t a monopoly (equivalent to what Clayton says about unions), it says that some natural monopolies are unavoidable, but to prevent harm to society, they are regulated so prevent predatory practices.

    Your response is still non-responsive to the question on racism –

    How can someone standing on a street corner saying “African Americans, on average, support GLBT rights less than Whites” cause harm to a group whose views are part of the dominant power structure?

    What examples do you actually have of actual harm, because black voters opposed same-sex marriage, to those same voters? Here’s the UN definition of “racial discrimination”, which I agree with in large part, and disagree with on a minor point –

    “the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. ‘”

    My only change would be “… by a group which has the power to put those practices into effect.”

    By the UN definition, the statement “African Americans, on average, support GLBT rights less than Whites” is not “racial discrimination” because there is no implied action — no “nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. ”

    But let’s say, just for the sake of argument, that the statement is “Boycott Black businesses because African Americans, on average, support GLBT rights less than Whites”. Is that racial discrimination? Does it meet the second part of the definition — “which has the purpose or effect of …”. Yes? No? Do Queers have the ability to do those things by pointing out that the average African American (and Latino) voter is opposed to marriage equality? Which do you think is a more likely outcome to the boycott request — the majority of California voters, who oppose same-sex marriage, supporting or opposing the boycott?

    So, instead of pointing me at posts that say it’s a “kyriarchy” and not the hetero-patriarchy (this is a hetero/homo discussion, so I disagree — hetero-patriarchy is the correct term), point me to actual harm done to black voters because they supported, on average, discriminatory legislation against queers. That’s why it’s trivializing to say that statement is “racist” — because what “racial discrimination” means isn’t “hurt feelings”. It’s actual harm, caused by people with the political power to inflict that harm.

  45. 45
    Jake Squid says:

    FCH,

    Please stop now. You’re entirely wrong about the positions PG has put forth in this thread and you’re arguing against a phantasm of your own creation.

  46. 46
    FurryCatHerder says:

    Jake,

    I’m not at all wrong. Using anti-union language — the phaseology, jargon, terms, arguments — IS anti-union.

    PG could have said “Thanks! I didn’t realize that unions aren’t industry wide and that through organizations like the Joint Apprenticeship and Training Committee they support the next generation of union members, and that wages are only one of many issues in a contract. I didn’t know that!” But she didn’t …

  47. 47
    joe says:

    FCH wrote

    Okay, so in addition to being anti-union and anti-worker, you’re also for busting unions by murdering union workers

    IMO that’s a rediculous and insulting summary of PG’s stance.

    Just to be clear, i’m not a Mod. Just wanted to share my opinion.

  48. 48
    Myca says:

    FCH wrote:

    Okay, so in addition to being anti-union and anti-worker, you’re also for busting unions by murdering union workers

    Joe Wrote:

    IMO that’s a rediculous and insulting summary of PG’s stance.

    Just to be clear, i’m not a Mod. Just wanted to share my opinion.

    I am a mod.
    Joe’s right.
    Cut it out, FCH.

    Seriously. This is getting to be a thing with you, and it needs to not be.

    —Myca