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Friday, July 18, 2008

Johnny Sack is a Union Boss, Apparently

You may remember Vincent Curatola from "The Sopranos" -- he played a rival boss to Tony who suffered the indignity of attending his daughter's wedding in federal custody.  Now, Mr. Curtola is still living off his Sopranos fame by portraying a mobster.  Well, at least he seems to be a mobster.  Watch the video and judge for yourself.

Problem is, Mr. Curatola is also portraying a union leader.  The gist of the ad, sponsored by the innocently named "Coalition for a Democratic Workplace," is that workers will be threatened and intimidated by mobbed-up union bosses if Congress passes card-check legislation.  Mickey Kaus is a big fan of the ad, posting that it "seemed effective to me, but I'm pre-convinced."  But to me, the ad is an absurd caricature of unions and their leaders.  Frankly, I find it offensive.

I've posted before about the Employee Free Choice Act -- the legislation that would require employers to recognize a union if a majority of employees fill out cards attesting to that desire.  Providing a statutory mechanism for unions to be recognized through card-check would put unions on the same playing field as other service providers.  The current system of the NLRB secret-ballot elections allows employers to initimidate their workers through captive-audience speeches and predictions about a dire future.  (Employers are, as Catherine Fisk memorably put it, the "anti-seller" in this market.)  There is a lot if research out there about the effects of this employer intimidation.  The scholarly literature has much less discussion of union intimidation, particularly mob-related intimidation.  This is not to deny that the mafia has had control over certain unions.  But there is little evidence that mob bosses would use card-check certification to expand their reach. 

There is room for concern about union intimidation.  As I have written, there is also room for concern that employees are not getting the information they need in the course of a representation campaign.  A recent essay by Sen Arlen Specter and Eric Nguyen provides some hope that compromise legislation is possible here.  But the efforts to reach a sensible solution will be harmed, not helped, by ads such as the one above. 

Posted by Matt Bodie on July 18, 2008 at 12:34 AM in Corporate | Permalink

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Comments

Suggest reading the full spectrum of research...especially the econometric analyses. It's hard to quibble with such research. So much of the writings are opinions without a foundation of sufficient sample size, time period, appropriate legitimate data base resulting in no statistically significant findings. In any event, surely you would not contend that antiquated unionism should be the ONLY choice at the workplace. A robust chorus includes alto, tenor, and base voices...not just a soprano.

Posted by: JR | Jul 20, 2008 11:11:41 AM

JR:

If your questions were addressed to me, my answers are as follows. To know whether I would support an alternative form of employee voice, I would have to know two things: first, what is that alternative employee voice -- how does it work, exactly; and second, more importantly, do the employees involved have a genuine, uncoerced choice as to what voice they get.

As to faculty, many faculties at public universities are represented by unions. Most faculties at private universities don't have that option, because of the Yeshiva decision (faculty are excluded from NLRA protection as managers).

Finally, I never said anything like, "I only see one option." We were talking about employee free choice under the NLRA.

Posted by: Joseph Slater | Jul 19, 2008 2:24:21 PM

Sorry, faculty, not faulty.

Posted by: JR | Jul 19, 2008 1:57:09 PM

Do you oppose alternative forms of employee voice? Is traditional trade unionism the only option? Do employees have only one choice: union or no union? Do faulty members routinely defer desires and opinions to a single elected voice? Why do you see only one avenue?

Posted by: JR | Jul 19, 2008 1:55:57 PM

JR:

But again, card check agreements are already legal -- at the employer's option. If you really think employees typically don't know enough about unions or their own employer to make an informed choice, are you opposed to the existing, longstanding rule that allows "voluntary" card check agreements?

Also, if a majority of the relevant employees have voluntarily signed cards requesting union representation, doesn't that indicate that the employees themselves feel as if they have sufficient information to make that choice?

And how hard do you think it actually is, for a motivated employee skeptical of unions, to check out the type of information you describe and distribute it to his/her co-workers?

Posted by: Joseph Slater | Jul 19, 2008 12:42:26 PM

I'm concerned with your line: "Providing a statutory mechanism for unions to be recognized through card-check would put unions on the same playing field as other service providers."

That seems misleading. Does a company's groundskeeper have the ability to act as its legal representative for the firm's revenue plans, as a union negotiates an employee's pay rate? Does a company's accounting firm have the ability to dictate the firm's shipment schedule, as a union has the ability negotiate hours? Does a company's lawyer have the authority to shut down the firm's production, as a union has the authority to force employees to strike (or pay the consequences)?

This line of argument -- why can't you sign a union card as you'd make any other agreement in life? -- strikes me as disingenuous given a union's unique power to benefit for injure an employee's life.

Posted by: Bret Jacobson | Jul 19, 2008 12:08:11 PM

Choice requires information. So, silence the employer. Create a new federal agency to speak to employees based on continuous research findings about the union in question. Discuss its use of dues monies for whatever purposes, the state of its pension fund, number of ulps against it and its locals, the number of criminal indictments, etc. Surely no one would suggest a single, interested party be the source of all information!

Posted by: JR | Jul 19, 2008 10:37:10 AM

Here's another question for card-check opponents. You understand, I presume, that card-check recognition is already *allowed* under the NLRA -- but only at the *employer's* option. If a union presents an employer with a legit majority of signed cards, an employer is legally allowed to recognize the union without an election -- and this happens not infrequently.

For those claiming to be concered about mob influence, this would seem to be a big problem. After all, in the handful of industries where unions are infested with mob elements, the employers typically are too. And there's nothing in the *current* law that prevents a mob-influenced employer from recognizing a mob-influenced union without an election.

Here's the key point: EFCA wouldn't take away any long-standing right of *employees* to insist on an election; rather, EFCA would take away the *employer's* right to insist on an election. Now why would you want to do that, except to preserve the *employer's* "right of intimidation"? Heck, I would even accept "we want to preserve the employer's right to make an anti-union argument" as a plausible argument. But don't pretend you're against EFCA because of your concerns about *employees.*

JR:

Amazing that you can sweep away so many studies so briefly and in some cases, via ad hominem. These studies are plentiful and easy to find, so I'll let others judge, but they certainly don't all, or even mostly, focus on one narrow area or time period. And some of the studies reporting widespread illegal behavior by employers come from the NLRB itself, or plain readings of NLRB data.

I'm also curious: to what do you attribute the wide gap in public sector unionization rates and private sector unionization rates? After all, public sector labor laws typically provide *fewer* rights than does the NLRA. My belief is that this is because public sector union elections campaigns (for a variety of reasons) typically do not feature anything like the intimidating and often illegal tactics used in private sector campaigns. Thus, we see unionization rates in the public sector that more closely mirror the actual desires of U.S. workers, because public workers are generally being given uncoerced choices. Your theory is what?

Posted by: Joseph Slater | Jul 19, 2008 10:33:24 AM

Wondering:

If you're referring to a comment, you might try actually addressing what the comment said. First, my previous comment listed a number of reasons other than "intimidation of opposing employees" why people interested in the genuine free choice of workers would want EFCA. Again, there are well-documented, comprehensive studies that cite massive employer intimidation and illegal activity as a major problem in private sector labor relations, preventing the free choice of workers.

Second, the experiences in public sector jurisidction which use card-check legislation have not supported the over-the-top fears that you and the commercial Matt posted seem concerned about.

To answer your question, employers don't want the open ballot because with card check, there is not a lengthy campaign season in which employers can (and frequently do) fire and otherwise intimidate pro-union employees. Also, EFCA provides stiffer penalties for such actions, so it would much less likely employers would fire employees illegally.

Finally, and perhaps most importantly, the *goal* of the employer's illegal action is to prevent the employees from choosing a union as their bargaining representative. With EFCA, once the cards had been validated -- a process which includes, by the way, a check on whether the cards were obtained via intimidation -- the representative is in place. In short, the employer wouldn't have the motivation to behave illegally to try to stop the union from coming in, because the union would, given a majority of legit cards, be there.

Posted by: Joseph Slater | Jul 19, 2008 9:51:23 AM

To suggest that there are legitimate studies to establish routine, pervasive, nationwide or sectorwide employer or union coercion is wrong. At best, studies have focused on a single campaign or data for one state for a year or two. Some studies are funded by labor or monies channeled to tireless pro-labor "academics" a/k/a "scholars" to be purposely listed on their webpage propoganda and "white papers." (Why not have all "academics/scholars" provide transparency and report funding sources for their research and for their affiliated schools). Moreover, data is not robust and simply does not permit the broad conclusions that follow. NLRB data is limited and, without an enormous undertaking to analyze the underlying facts in each matter filed, one cannot draw statistically significant conclusions to afford sweeping politicized commentary. Talking to union organizers only in a single metro-area might be interesting but representative of what? Considering that union behaviors occur off-site almost exclusively, without NLRA informed persons/employees, what goes unreported? Finally, those who study and report undermine their credibility when repeatedly commenting that employers-all are law violators. These behaviors do not well advance the debate. In any event, the amendment of Section 2(5) is long overdue and essential to afford employees in all workplaces options - traditional union or something else. Slavishly supporting a tyrannical single choice - traditional union or nothing - widely misses the mark.

Posted by: JR | Jul 19, 2008 9:47:12 AM

re Slater's last comment: Once again, is there a purpose to the card-check rule other than to encourage intimidation of dissenting employees? And if so, what exactly is that purpose? (As a side note, if employers are the ones doing most of the intimidation, wouldn't they want the open ballot?)

Posted by: wondering | Jul 19, 2008 1:21:56 AM

Tor: You might want to look at the *number* of union elections. Employer intimidation -- which is extremely well documented and is a much more serious problem than union intimidation as far as any reputable study can tell -- discourages unions from even using the NLRB process. And yeah, while union firings and other employer intimidation are illegal, the sanctions are so weak that a significant percentage of employers are apparently violating the law with near-impunity, as an intentional strategy.

Wondering: see above. There is quite a bit of literature arguing that the NLRB election system is hopelessly broken and does not work to reflect the actual wishes of employers.

Some real-world data to support this that isn't often cited. In the public sector, where employers don't run the same sort of intimidation-based anti-union campaigns, union density is nearly 40%. Are public workers (ranging from secretaries and janitors in public schools, to cops and firefighters, to teachers, to white-collar workers in public agencies, to street cleaners and maintenance workers) just somehow all different from private sector workers? No, a good chunk of the explanation is lack of employer intimidation by public emploeyrs in union organizing campaigns and elections. In the absence of this often-illegal intimidation, the true wishes of workers surface, and the unionization rate is much higher.

Related point. In the public sector, a number of states have already adopted card-check recognition. I've yet to hear of any troubling tales of union intimidation, mob-based or otherwise, in these states.

It's kind of like after the Mass. experience, we know that gay marriage really doesn't lead to legalizing man-dog sex.

Posted by: Joseph Slater | Jul 18, 2008 11:40:18 PM

Matt: is there any reason to introduce the card-check rule, other than to create an opportunity for intimidation of workers (by both unions and employers)? If there is such reason, what is it?

Posted by: wondering | Jul 18, 2008 9:08:57 PM

Jeff Hirsch: I saw what you did there. You sandwiched 'Captive audience speaches are actually quite effective.' in between saying that employer intimidation significantly effects workers and discussing anti-union firings. Are we supposed to play a game of 'which doesn't belong'?

Employer intimidation and anti-union firings are both prohibited by the NLRA, whereas captive audience speeches are legal. For an added bonus, you have not cited any facts to support your claim that they are, in fact, effective. Since unions currently win a majority of elections, I guess they couldn't be too effective.[1] Oh, and I have a cite for that last claim...

1 Seventieth Annual Report of the National Labor Relations Board, Table 13, total RC elections.

More generally, while scholarly literature may not have much discussion of mob influence in card check, that does not mean that mob-influenced unions will not take advantage of it, or that there is no danger that unions will use tactics similar to those used by mob-run unions to win elections.

Posted by: Tor | Jul 18, 2008 3:21:24 PM

Local 3435:

Intimidation is one thing -- mafia intimidation is another. I find the ad offensive because it coarsens the dialogue and trades on stereotypes. If the intimidation you mention is prevalent, let's talk about that. But that's not why Johnny Sack is in this ad.

Posted by: Matt Bodie | Jul 18, 2008 12:43:59 PM

I don't doubt that some union intimidation occurs, but there's been a lot of studies showing that employer intimidation significantly effects workers. Captive audience speeches are actually quite effective. Then, of course, you've got anti-union firings, which have a clear harsh effect on the vote. That said, I'm all for a system that reduces intimidation on both sides.

Posted by: Jeff Hirsch | Jul 18, 2008 11:30:52 AM

You've obviously never worked with hardcore union guys, at least not while they weren't on best behavior. Pre-law school I worked in a shop that was in the process of being organized. Active opponents of the union got the silent treatment (no big deal, but it even applied to work-related [and safety] issues), pissed-in coffee, deflated tires, ruined lunches, late night phone calls with heavy breathing, etc. These weren't the organizers, these were guys (always guys) who supported the unionization but to whom the organizers could plausibly deny any affiliation. All this because they wouldn't sign the cards to initiate the vote. I can't imagine what it would be like if the cards were the vote. I supported the unionizing of our shop and (most) unions in general but was pretty sickened by all of this. No effort was made by the organizers to discourage the behavior. This is one stereotype that has teeth.

Captive audience speeches aren't that tough to deal with. You get paid to sit while your boss or a consultant talks about why unions are bad. Beats working and it doesn't change anyone's mind. It does provide some cover for people who were already anti-union but is a silly reason to take away the secret ballot. Professors and political elites think working class people are easily-persuaded dupes. We're not.

Posted by: Local 3435 | Jul 18, 2008 10:40:16 AM

Good post.

Posted by: Joseph Slater | Jul 18, 2008 9:59:19 AM

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