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There's been a bit of a back and forth over at Marc Ambinder's blog about EFCA and how pollsters frame the Employee Free Choice Act.

And, surprise surprise, one side (you'll never guess which) is using a dishonest frame and basically lying about what EFCA would do.

It's probably important to explain what EFCA is, and what it is not.

Since the National Labor Relations ACt was passed, there have been two ways to join a union. Either through a secret ballot election, or through "card check". However, employers have been able to force secret ballot elections even if a majority of their employees have already signed up via card check. The end result is that  forming unions is more difficult and thus, less likely.

EFCA is meant to make it easier to join a union. It DOES NOT ELIMINATE secret ballot elections. In fact, if a certain percentage of employees would rather have a secret ballot than "card check", they can get one.

Now, in his original posting on the subject, Ambinder points out the very different ways the pro and anti-EFCA forces try to frame the debate.

The AFL-CIO's polling firm, Hart Research Associaties, asks respondents whether they'd support legislation that "[a]llows employees to have a union once a majority of employees in a workplace sign authorization cards indicating they want to form a union."

75% say yes.

Great news, right? 75% of those polled support EFCA.

Then again, maybe not:

Pollster John McLaughlin, working for the Coalition for a Democratic Workplace, (asks) the question this way: "There is a bill in Congress called the Employee Free Choice Act which would effectively  replace a federally supervised secret ballot election with a process that requires a majority of workers to simply sign a card to authorize organizing a union and the workers' signatures would be made public to their employer, the union organizers and their co-workers. Do you support or oppose Congress passing this legislation?"

74% say no.

Italics mine.

Now, both sides of this debate obviously have their own agendas. And both sides have plenty of money to conduct polls to determine the best way to "sell" their argument to an America that largely doesn't know what EFCA is or why its needed in the first place. So, how the question is framed, is very important to whether or not the legislation is going to pass.

Ambinder explains:

The AFL-CIO's definition of the legislation leaves out some details -- namely, that workers participating in card check events won't be able to keep their choices  a secret.

The CDW definition includes loaded language implying that their co-workers and bosses could intimidate them into signing the card.

It's at this point, where things get really fun. Because Mike Murphy (yes, that mike murphy) decided to send an email to Marc explaining why the anti-EFCA framing is the correct one.

The AFL polling -- despite the great polling skills of my pal Peter Hart -- asks a very generic question about employee rights.  We focus  on the way a worker's life would actually change if this bill passes  and the secret ballot that is the usual situation in unionizing  efforts today essentially vanishes.  I think our more specific  question is far more predictive.

Italics mine.

In response, a pro-EFCA pollster named Guy Molyneux responds to Murphy with a rather detailed take down of Murphy and the anti-EFCA poll.

But, since brevity is a virtue I'll just quote the most important parts:

Most importantly, the central claim is simply false, as you say in your post: the law does not replace or eliminate elections. That alone invalidates the question as a measure of public opinion.

snip

It's true that we don't ask about secret ballot elections one way or the other, but that's because -- as you note -- the Employee Free Choice Act does not eliminate such elections. It simply removes employer's ability to prevent a card check election, and thus effectively makes card check available to all employees. Hence our focus on that process.

So, EFCA does not eliminate secret elections. So conducting a poll about whether or not you'd support a program that did eliminate secret ballots really isn't helpful, or relevant, to the EFCA debate.

But, despite all this, Mike Murphy still doesn't get it.

I think Guy misses the big point here; the part of EFCA that really counts is the likely elimination of the secret ballot in most future union organizing elections.

He then goes on to offer to help pay for a new poll in which they include false language about EFCA eliminating secret ballots.

I'll make this offer: If the AFL-CIO/Hart Research team re- tests the same ballot question they have released to the media, but adds the critical phrase "which would eliminate the secret ballot workers now utilize in most union organizing elections" to their question and then release the findings from this more accurate question to the media, I'll chip in $5,000 toward the cost of the conducting this poll.

No Mike. You're the one missing the big point here. EFCA, as pointed out not only by the pro-EFCA pollster, in his lengthy response to you,  but also by the "moderator" of this debate in his original post on the subject, WONT ELIMINATE SECRET BALLOTS. So why on earth would they conduct a poll suggesting it did?

I can understand the anti-EFCA force's problem. Without the boogeyman of big labor "eliminating" secret ballots, they've got nothing to demagogue. They think they can win the fight if they can get enough people to believe that EFCA is just an undemocratic handout to labor to help fill their coffers and get more union-friendly democrats elected.

But that's not the case. And lying about it, repeatedly, won't ever make it so.

UPDATE: Commenter JWISHBONE helps sort this out.

Let me start by saying that I am a Dem, am very liberal, and support EFCA.  However, I am also a labor lawyer, so I know exactly what EFCA is.  

Anyone who says that EFCA does not eliminate the "secret ballot" is being a tad dishonest.  That statement is technically correct, but practically, there will be no more secret ballot elections if EFCA passes in its current form.

The way it works now is as follows:
A union will ask employees to sign union authorization cards - cards that permit the union to represent the employee.  If at least 30% of employees in an appropriate bargaining unit sign cards, the Union can petition the NLRB for an election.  Practically, unions very rarely petition for an election unless they have 60-80% of employees sign cards, because during the election period (usually about 6 weeks), the union almost always loses some support (often times at the hands of employer unlawful activity).  If 50% plus one sign cards, the employer can (but usually does not) recognize the union.

Union authorization cards are solicited by union organizers.  The employer never sees them.  It's basically the same thing as someone coming to your house and saying "Please sign this document that says you will vote for Barack Obama for president."  In this situation, you might say "Great, I love Obama, I'll sign that," and you might mean it.  You might also say the same thing but not mean it, and sign the thing just to get the person to leave you alone.  Or you might say "Sorry, I'm voting for John McCain."  The sign it so they'll leave me alone option happens very often though.

Under EFCA, if 50% plus one of employees sign cards, the Union is in.  This is true even if 20% of the people who signed cards signed them just so the union organizer would stop bothering them, and don't really want a union.  Practically, there would never be an election - the only circumstances in which there would be is if the Union only got between 30 and 50% of people to sign cards, and then petitioned the NLRB for an election.  Practically, that will never happen (because unions almost always lose support during the election campaign).

A couple other valid objections to EFCA - (1) there are two sides to every story.  Many people think unions are great, but obviously there are things that aren't so great about unions as well.  With the card check process, employees very likely will only get the Union's side, and not the employer's side.  (2) EFCA also contains a provision that if the union is certified and the parties can't agree on a contract in about 4 months, the government will appoint an arbitrator who will then set the terms and conditions of employment that are binding for 2 years.  

I hope this helps.  Again, I support EFCA - but there are legitimate complaints, and saying that secret ballot isn't eliminated is misleading at best.

Originally posted to freaktown on Mon Jan 26, 2009 at 10:32 AM PST.

Poll

There is a bill in Congress called the Employee Free Choice Act which would effectively replace a federally supervised secret ballot election with a process that requires a majority of workers to simply sign a card to authorize organizing a union and the

80%48 votes
20%12 votes

| 60 votes | Vote | Results

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Comment Preferences

  •  Am i stupid or what? (1+ / 0-)
    Recommended by:
    Benintn

    whats wrong with a secret ballot?

    http://politicz.wordpress.com/

    by GlowNZ on Mon Jan 26, 2009 at 10:36:33 AM PST

    •  The question is... (6+ / 0-)

      Who should get to decide how employees form a union - the employees themselves, or their bosses/businesses?

      Because at the moment - it's the boss/business...not the employees.

    •  Here's what they are calling a "secret ballot" -- (9+ / 0-)

      Under Employee Free Choice Act, employees can sign cards indicating that they want to form a union. The companies are not shown the cards. Once a majority of cards are collected, they are sent to the NLRB who will certify if a majority of the employees did want to join. At this point, the company has to negotiate with the union for a contract.

      Basically, it's secret from the employer - and that upsets them because they have a harder time trying to determine who they can fire and/or harass in order to try and bust up the attempt to form a union.

      •  That's what Murphy's calling un-secret (3+ / 0-)
        Recommended by:
        JDPITALIA, Dirtandiron, freaktown

        What he calls secret is the ballot after a campaign of disinformation and intimidation by the employer while prohibiting union organizers from promoting the case for unionization on company time or property.

        In other words, he's once again showing his weaselly deceitful Republican self. If dishonesty had mass, Mike Murphy would be a black hole.

        I would never die for my beliefs because I might be wrong. - Bertrand Russell
        -5.38, -6.41

        by sullivanst on Mon Jan 26, 2009 at 11:19:49 AM PST

        [ Parent ]

      •  Wow - I didn't even realize how brilliant (1+ / 0-)
        Recommended by:
        Dirtandiron

        the strategy is.  It really protects the rights of workers by allowing the process to circumvent a ballot altogether.  Makes it a person-by-person process, rather than a one-time election event.

        Great idea.  Much more like a petition drive which accumulates, rather than an election that decides once and for all.

        Justice, mercy, tolerance, hope, love, grace, and redemption are all Judeo-Christian values.

        by Benintn on Mon Jan 26, 2009 at 12:00:32 PM PST

        [ Parent ]

    •  It's simplifying a multi-step process (5+ / 0-)

      First of all, the employees have to sign cards agreeing to have the election via the secret ballot to unionize. Choosing to fill out a card yeah or nay is truly secret, and the cards are collected by the organizers. Then the organizers announce a time for the election. The bosses/managers can pull all kinds of tricks -- not letting workers off to vote, or calling in "motivational" speakers to denigrate the union, or making promises they won't keep if the union fails. THEN comes the "secret ballot" election, which must take place at the workplace.

      The Employee Free Choice Act makes the establishment of the union conditional ONLY on collecting enough signatures (cards) to have a union in the first place. That way, the organizers only have to prove there are enough interested parties for a union to go forward.  

      Radarlady

    •  What's wrong is what happens beforehand (6+ / 0-)

      Caveat: what follows is my understanding, it's not necessarily 100% accurate, corrections welcome if I'm wrong

      Under the current system, unionization of a workplace I believe always starts with a card check.

      If less than 1 in 3 employees sign up, the union will not be recognized.

      If 33%-50% of employees sign authorization cards, a secret ballot always occurs.

      If 50% or more of employees sign authorization cards, the employer (and this is purely at the employer's discretion) can either recognize the union, or force a secret ballot.

      Now, in the time between receiving the 50%+ card check, and the date the employer sets for the secret ballot, the employer can use company time and resources to campaign actively against unionization, whilst prohibiting union reps from equal access. Moreover, despite it being illegal to do so, employers very often fire the union activists in their workplace, or otherwise intimidate them into silence. The penalties for doing this are light - the difference between what the wrongfully terminated employee would have earned over the next 12 months at their current salary and what they actually earn over the next 12 months.

      The difference that EFCA makes is that in the case where 50%+ of employees sign authorization cards, the employer no longer has the ability to force the ballot. In other words, given a vote they don't like, employers no longer have the option to manipulate a new election in the hopes of getting the result they prefer. That's it.

      Employees are not deprived of any choice they already have by EFCA. Anyone who implies otherwise is raising a clear red flag that they're a fraud. The people who are whining about 'eliminating the ballot' really just want to have a go at subverting the clearly stated will of a majority of their workforce. Now tell me, how can that possibly be democratic?

      I would never die for my beliefs because I might be wrong. - Bertrand Russell
      -5.38, -6.41

      by sullivanst on Mon Jan 26, 2009 at 11:11:28 AM PST

      [ Parent ]

    •  The term "secret ballot" is just a term that anti (2+ / 0-)
      Recommended by:
      SciMathGuy, Dirtandiron

      union people throw around to try and make it seem like forcing employees who want to form a union to have a election to vote for it. The truth is that it is just a employers to stall the formation of a union. This gives them time to intimidate, harass, fire etc employees who are pushing for a union. Companies will hire anti-union firms and then bring in employees one at a time to meet with these firms to be fed a bunch of anti-union propaganda and threatened.

      This law would still allow a "secret ballot" if the employees wanted one (it would take 30%), but if the employees didn't want a "secret ballot" then they all it takes is a majority wanting to join a union. Once that happened, the employer would be forced to recognize said union. This is the way it should work.

      All of the true things I am about to tell you are shameless lies.- Bokonon

      by ryan81 on Mon Jan 26, 2009 at 11:16:44 AM PST

      [ Parent ]

    •  not stupid, thanks for asking (1+ / 0-)
      Recommended by:
      Dirtandiron

      just uninformed.  thanks to Elise and others for filling in the details.

      Justice, mercy, tolerance, hope, love, grace, and redemption are all Judeo-Christian values.

      by Benintn on Mon Jan 26, 2009 at 11:58:15 AM PST

      [ Parent ]

  •  You mean, polling "Employee Free Choice Act"... (3+ / 0-)
    Recommended by:
    redwagon, Prison4Bushco, Dirtandiron

    right?

    I dunno what this EFCA is.

  •  You know what's a good compromise then? (1+ / 0-)
    Recommended by:
    Dirtandiron

    How about you leave the option for an either/or scenario, but mandate that employers CANNOT force secret ballot option on employees.  Essentially leave it up to the workers to decide.  This would actually take away a GOP talking point and attempt to get the bill passed.

    •  That is how the law is written. Employees can (3+ / 0-)
      Recommended by:
      radarlady, Dirtandiron, Benintn

      still choose to have a "secret ballot" if they choose to do so. But they don't have, this law makes it so that once 50+% want a union they employer has to recognize said union.

      All of the true things I am about to tell you are shameless lies.- Bokonon

      by ryan81 on Mon Jan 26, 2009 at 11:21:16 AM PST

      [ Parent ]

    •  Isn't that a great compromise? (1+ / 0-)
      Recommended by:
      Dirtandiron

      That's exactly what the bill already says.

      The union busters are lying to the American people, because they know they're on the wrong side of the issues.  All they have left is lies.

      Justice, mercy, tolerance, hope, love, grace, and redemption are all Judeo-Christian values.

      by Benintn on Mon Jan 26, 2009 at 12:06:31 PM PST

      [ Parent ]

  •  Secret Ballot (2+ / 0-)
    Recommended by:
    SciMathGuy, freaktown

    Let me start by saying that I am a Dem, am very liberal, and support EFCA.  However, I am also a labor lawyer, so I know exactly what EFCA is.  

    Anyone who says that EFCA does not eliminate the "secret ballot" is being a tad dishonest.  That statement is technically correct, but practically, there will be no more secret ballot elections if EFCA passes in its current form.

    The way it works now is as follows:
    A union will ask employees to sign union authorization cards - cards that permit the union to represent the employee.  If at least 30% of employees in an appropriate bargaining unit sign cards, the Union can petition the NLRB for an election.  Practically, unions very rarely petition for an election unless they have 60-80% of employees sign cards, because during the election period (usually about 6 weeks), the union almost always loses some support (often times at the hands of employer unlawful activity).  If 50% plus one sign cards, the employer can (but usually does not) recognize the union.

    Union authorization cards are solicited by union organizers.  The employer never sees them.  It's basically the same thing as someone coming to your house and saying "Please sign this document that says you will vote for Barack Obama for president."  In this situation, you might say "Great, I love Obama, I'll sign that," and you might mean it.  You might also say the same thing but not mean it, and sign the thing just to get the person to leave you alone.  Or you might say "Sorry, I'm voting for John McCain."  The sign it so they'll leave me alone option happens very often though.

    Under EFCA, if 50% plus one of employees sign cards, the Union is in.  This is true even if 20% of the people who signed cards signed them just so the union organizer would stop bothering them, and don't really want a union.  Practically, there would never be an election - the only circumstances in which there would be is if the Union only got between 30 and 50% of people to sign cards, and then petitioned the NLRB for an election.  Practically, that will never happen (because unions almost always lose support during the election campaign).

    A couple other valid objections to EFCA - (1) there are two sides to every story.  Many people think unions are great, but obviously there are things that aren't so great about unions as well.  With the card check process, employees very likely will only get the Union's side, and not the employer's side.  (2) EFCA also contains a provision that if the union is certified and the parties can't agree on a contract in about 4 months, the government will appoint an arbitrator who will then set the terms and conditions of employment that are binding for 2 years.  

    I hope this helps.  Again, I support EFCA - but there are legitimate complaints, and saying that secret ballot isn't eliminated is misleading at best.

    •  Excellent explanation, jwishbone. Thanks! (0+ / 0-)

      And thanks to the diarist for posting a good diary, too.

      The difference between naked and nude is that naked sounds like an accident and nude sounds like it was done on purpose.

      by SciMathGuy on Mon Jan 26, 2009 at 11:58:29 AM PST

      [ Parent ]

    •  Binding arbitration (2+ / 0-)
      Recommended by:
      JDPITALIA, Dirtandiron

      This is actually a fantastic idea.

      In fully one-third of workplaces that have elected to unionize, the employer has yet to agree to a contract with the union. Current law does not punish employers who simply stone-wall on the contract as a way to make the union irrelevant, despite the employees having chosen it through a process which is heavily biased against the choice to unionize.

      By the way, do you have any way of telling how much of the drop-off in support from card check to election is due to "just leave me alone" signatures, vs. how much is due to the employer having a near-monopoly on information provided and campaigns of intimidation between the time NLRB requires the ballot and the ballot is actually held? Given that in 25% of cases where a ballot is required, at least one pro-union employee gets fired, and that 20% of employees advocating for unions during the campaign period get fired, it's clearly unsafe to assume that a majority of the drop-off can be dismissed as 'just go away' signatures.

      I would never die for my beliefs because I might be wrong. - Bertrand Russell
      -5.38, -6.41

      by sullivanst on Mon Jan 26, 2009 at 12:25:08 PM PST

      [ Parent ]

      •  Hard to tell (0+ / 0-)

        It's hard to tell how much is the "just leave me alone" versus the employer's information.  I'm not sure where your stats are coming from but I would guess those numbers are high (BTW - I don't assume that the majority of the drop off are the "just go away" people - that's impossible to know).  Clearly employers give misinformation all the time about unions - they also give true information.  Union's aren't the panacea some think they are - they have their own problems as well, and being in a union doesn't guarantee you anything (except that you have to pay dues).  That said, I agree it should be easier to organize, and that some people certainly benefit from being represented.

        Personally, I think a good compromise would be either automatic representation if there is a supermajority of signed cards (like 65-75%), or a process for "quickie" elections (2 weeks instead of 6), or a provision for giving unions equal access to employees.

        On the mandatory binding arbitration front, I think that is ripe for disaster.  I think it's a bad idea (for both sides) for the government to be setting wages, discipline policies, etc.  It's unclear in the current law, but there is a strong belief that both sides will have to accept the arbitrator's rulings (meaning the union can't strike to support their demands).

        •  My source (1+ / 0-)
          Recommended by:
          Dirtandiron

          This was my immediate source, although I have seen similar numbers many other places.

          Extending labor law to help unions campaign for ballots is all fine and dandy on the face of it, but given a big chunk of the incentive for EFCA is that existing laws are already being trampled by employers, it would smack somewhat of the FISA Amendments Act.

          If the arbitration only kicks in after 4 months, I don't think there's many companies acting in good faith that will be ensnared. I can't think of a better alternative, given the current fact of widespread stonewalling on agreeing initial union contracts.

          I would never die for my beliefs because I might be wrong. - Bertrand Russell
          -5.38, -6.41

          by sullivanst on Mon Jan 26, 2009 at 02:32:27 PM PST

          [ Parent ]

  •  Here's the problem today (1+ / 0-)
    Recommended by:
    Dirtandiron

    Employees gather signed cards of fellow workers who desire to form a union. When they have over 50%, usually 60% to 70% they submit the cards to the employer petitioning for recognition.

    Most employers use the current system to identify those employees who are against them. You know. Those gals and fellows who have no appreciation of the open door policy, and the good will of management.

    These very cards are in fact a target list, handed over to management by the workers.

    The employer rejects recognition and demands an NLRB election. This is the stall to allow time for management to sound the alarm and go to work on their list.

    The rest you know.

    If CEO's and their brethern have employment contracts, why do they insist that their employees don't need one?

    by JDPITALIA on Mon Jan 26, 2009 at 12:32:43 PM PST

  •  I was part of unionizing campaign in 2007 (2+ / 0-)
    Recommended by:
    Dirtandiron, freaktown

    This is a re-post of a comment I made under Why the Employee Free Choice Act Is So Important: The Power of Organization
    The company's first response to our campaign was to claim to the NLRB that our plant did not have the right to form a union without including 2 other nuclear plants which are about 150 miles away each. (Our single Florida plant however is union)  The Bush appointed NLRB of course agreed and we were then forced to try and organize all three plants simultaneous to get a vote.  The company hired a very high dollar union busting lawyer to help them orchestrate the vote no campaign. The campaign was on all fronts, video production, forced all hands meetings, buttons, huge posters with blatant lies about union membership all over the plant, intimidation, and lots of quality time with management who suddenly treated us very nice.  Our vice president came and gave a little speech to each work group about how much he cared about us even tearing up at one point in the speech.  Talking among ourselves afterward he cried at the exact same point to each group.  They fought to include work groups into the vote that were not part of the "working groups" organized and fought to exclude some who are.  Needless to say all these psychological and legal tactics worked and we lost our union vote and all the nice treatment ended as soon as the vote.  

    Nuclear Power can be the cornerstone to energy independence if ignorance and fear can be overcome

    by Kamin on Mon Jan 26, 2009 at 01:07:41 PM PST

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