Now What?

Now that the House Democrats have passed their 100-hours agenda (much of which will die in the Senate), where should they go next?

I think that the obvious next choice is the Employee Free Choice Act, which would allow employees to form unions based upon signing cards rather than go through the laborious process of elections. Those elections are so difficult and drawn out that they allow employers to dismiss or intimidate workers interested in unionizing. While unionization is hardly the complete cure toward rebuilding the security of the American working class, it is a necessary step.

Critics of “card-check” raise the specter of union toughs intimidating workers into signing. There are reasons to question the significance of this problem. Employers are equisitely sensitive to such prospects, and have a panoply of remedies to combat it legally. If there is evidence of this intimidation, it can stop the whole process in its tracks. And consider me skeptical that multinationals like Wal-mart don’t have the resources to fight off union drives even with card check.

Nonetheless, I think that Democrats can propose one amendment that will alleviate such concerns.

The EFCA should mandate a standard secret-ballot election four years after card check certification. Although employers can currently call for decertification elections one year afterwards, they must provide evidence for doing so. This would be automatic.

Such a provision would mean that employees could vote secretly to end their unionization (thus avoiding the fears of anti-labor advocated), while at the same time, any attempt by the employers to intimidate employees during the secret ballot election would be stopped because, well, there will already be a union.

Four years is long enough for the union to get up and running (refusals by employers to run out the clock would be quite difficult over that length of time without obviously being a labor law violation), but it would still force them to be responsive.

I like card check as a new opening gambit: it holds out real promise for workers, but does not involve the creation of any federal bureaucracies (indeed, it de-bureaucratizes the process) and most importantly, does not involve any new spending. That’s the general tack to take, which is also why, unlike my blogging colleagues, I strongly favor increasing CAFE standards. Sometimes a fiscal approach may be sounder policy, but given the current correlation of forces, a regulatory approach is an excellent second-best option.

Bush will of course veto card-check. As a political matter, I’ll take that.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.