Rethinking the Right's Approach to Organized Labor

This title is biting off more than I can chew.

Ever since I read Richard Freeman’s America Works, I’ve been thinking about the idea, and the value, of representation in the workplace. From Virginia Postrel to the Freelancers Union to Andy Stern, there have been a lot of interesting arguments about how to think about unionism beyond collective bargaining. A few days ago, a friend was telling me about the work of Harvard Law School’s Benjamin Sachs, and I’ve just started to dip into his work on how the labor movement is pursuing different channels to work around the narrow strictures created by the NLRA. Part of the Sachs argument — and it is related to arguments made by Stern at SEIU — is that for many workers, particularly for vulnerable low-wage workers, representation, not collective bargaining, is the key issue. Having an actor that can defend the interests of individual workers has a pretty straightforward value, particularly since we don’t have, and I don’t think we want, a regulatory panopticon. That is, basic enforcement of fair employment practices and safety standards — believe it or not, there really are employer who forbid their workers from taking reasonable bathroom breaks — might actually require an at least mildly adversarial institution.

This leads me to the debate over card check, where I’ve mostly been in sympathy with my team (i.e., BeP, or, “Banglo-Americans Eating Pumpkin”). The idea of the secret ballot is attractive for all kinds of reasons. But card check is separable from a whole host of other measures designed to limit the abuses of employers running counter-organizing campaigns. T.A. Frank has written a very smart article on exactly this idea for The Washington Monthly.

What most undermines the secret-ballot process is that employers can violate the law in numerous ways without consequences. Under EFCA, however, every illegal action has the potential to be costly, so firings, spying, threats, or other forms of intimidation would be less likely. Also, there is an alternative way to preserve the secret ballot while guarding against company malfeasance: expedited elections. Under current law, months can go by between when NLRB announces the results of a card check vote and when a secret-ballot election is held. If, however, this campaign window were reduced to just a few days, employers would have less opportunity to intimidate union supporters into changing their minds.

Which begs the question:

Given that card check is substantively minor, why has it come to define the entire debate about EFCA in Washington? Because it is the one element of the bill that its opponents can object to and still seem principled—it’s easier to stand up for “democracy” than for the right of companies to break labor laws without consequence.

Yes, and let’s not forget that some of us don’t want to just seem principled. By my lights, Frank has come up with a pretty ingenious approach. To be sure, I probably disagree with Frank regarding the salutary effects of labor unions. In my ideal world, we’d separate out the collective bargaining question, or tightly focus on enterprise-sensitive bargaining, and focus the efforts of unions/worker representatives on enforcement/fairness.

Over lunch, I was talking to a center-right Australian, who had served as kind of an intellectual architect of a reformist state government, and I was struck by his fairly warm sentiments regarding the labor unions he’s dealt with in the private sector. To state the obvious, our quirky history might lead conservatives to have a darker view of organized labor than is appropriate.