The impeccable T.A. Frank has a new piece on the Employee Free Choice Act that does two interesting things. First, it describes in detail the problems faced by workers who try to organize, problems that most people are simply not familiar with. One of the main reasons that legislation to support union members is so controversial is a lack of information about what a union organizing campaign actually entails.

Second, and even more interesting, Frank identifies a possible way to win on EFCA without card check. Sacrilege, you say? Perhaps. But Frank does point out that the key way to improve union organizing is to make it less cost-effective for the company in question to engage in shady anti-organizing activities. Right now, it is very easy to do all kinds of illegal things to prevent a union: firings, hazing, forced meetings, favoritism, etc. Card-check seeks to get around that by closing the window of time a company has to pull these kind of shenanigans -- as soon as 50 percent plus one workers sign on to the union, poof, there's a union (no worries, secret balloteers, it only takes 30 percent of workers to force an election).

Currently, when 50 percent plus one workers sign cards, the company can choose to recognize the union or demand an election. Though some companies have either the public-relation smarts or corporate-responsibility ideals to simply accept the union, many will demand an election, and it's during the long election process that most of the problematic actions occur. Frank's insight is that if we increase the financial and other penalties on all those things -- currently, the sanctions are near nonexistent -- then a company would have a much bigger incentive to simply accept the union as soon as the cards are signed, whether or not it is legally required. And thus, card check without card check.

Frank apparently found some labor folks who think this might be a workable compromise, since the bill is much more likely to pass if conservatives can't demagogue the secret ballot issue. I'm mildly skeptical, since business interests are going to want to fight anything that would make union organizing easier, but public opinion would be more likely to fall on the labor side. Whether or not labor would accept this kind of compromise remains to be seen. The other part of this discussion is that the new administration can do a lot to help enforce the currently existing mild penalties through the National Labor Review Board and the Department of Labor -- the Bush administration did little, if any, regulatory enforcement -- and there is already funding in the stimulus bill to increase enforcement of worker protection.

-- Tim Fernholz

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