Wednesday, March 25, 2009. The Senate Democrats leaning away from legislation designed to provide workers greater ability to organize, Mark Pryor and Blanche Lincoln, are both from Arkansas, the home state of Wal-Mart. Perhaps you think that has no bearing on their posture. I don't think there's any doubt at all that the fact of the big-box retailer has been highly influential; no Profiles in Courage there.
On Monday, Senate Republicans held an open conference on the "Employee Free Choice Act." (http://www.c-span.org/Watch/watch.aspx?MediaId=Economy-A-16607) The featured panel members included Senators Orin Hatch (R-UT), Bob Bennett (R-UT), Mitch McConnell (R-KY), and James Risch (R-ID). Witnesses included Eugene Scalia, son of Supreme Court Associate Justice Antonin Scalia and former Bush 41 Labor Department Solicitor, Mr. Frank Cannon, a foreman for a construction company, and Ms. Kathy Gornik, current head of the Consumer Electronics Association.
An interesting and telling anecdote was Mr. Scalia stating there existed a marked difference between management speech, which is protected by the First Amendment, and coercion, which is not. He asserted that however it is and has been the entrepreneurs who created the jobs and they thus have a right to speak to their employees, outside adgitators for labor unions do not. While "entrepreneur" may be an accurate representation for execs such as Steve Jobs of Apple, and others like him, it is most certainly disingenuous, at best, and an intentional lie, at worst, to suggest that management at Sears, at Wal-Mart, at Target, at Bank of America, at Merrill Lynch, at AIG, etc. bear even a remote semblance to anything entrepreneurial.
Some facts about the Act demand notation. First, the card check provision is one of two options available to organizers; the other being a secret ballot initiative. Once the 50 percent plus 1, whether via card check or secret ballot, minimum number of non-management employees have indicated a preference for union representation, the time in which a contract must be negotiated is 90 days. In the instance no contract has been reached, binding arbitration through a federally appointed arbitrator is mandatory, and the decision by the arbitration panel is binding and supposedly non-litigable.
If what Senator Bennett opined bore even a first blush relationship with reality, that "the issue is what employees want, if they want a union then they should have one after having had the chance to vote informed and uncoerced," few would likely disagree. However, as reflected in the GAO (Government Accountability Office) report that was released this morning, the fiction Bennett suggests mirrors reality is not the reality workers today deal with.
The reason this 90-day provision is quintessential is the "coercive" history of employers, once faced with a union oriented workforce, to fail utterly to bargain in good conscience, and to drag the process out indefinitely, thus negating entirely a union, and he employee protections one provides, in the workplace. The fact that workers have stated a clear wish for union representation becomes a cynical circus farce, during which time management fires those it merely suspects may have advocated - or even been sympathetic to - any element of unionization. As employees watche as coworkers summarily lose their jobs, those remaining receive the intimidating message, loud and clear.
As summary, all the senators and each of the witnesses spoke as a chorus in opposition to the Act; not because it might make things more difficult for management, but because, as each claimed, they were solidly pro-worker: The Act would, they announced, negatively impact both the rights and welfare of America's working men and women. That was the central concern they enunciated. To me, it was all too much "Through the Looking Glass":
"Oh Oysters, come and walk with us!"
The Walrus did beseech.
But wait a bit," the Oysters cried,
"Before we have our chat;
For some of us are out of breath,
And all of us are fat."
"I weep for you," the Walrus said: