So, true to his word, Carl Wimmer has proposed HJR008 – House Joint Resolution 8, which reads in its entirety:
Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each of the two houses voting in favor thereof:
Section 1. It is proposed to enact Utah Constitution Article I, Section 30, to read:
Article I, Section 30. [Secret ballot.]
The right of the people to vote by secret ballot is fundamental. The right to vote by secret ballot in an election under state or federal law for public office, on an initiative or referendum, or to designate or authorize employee representation may not be infringed.
Section 2. Submittal to voters.
The lieutenant governor is directed to submit this proposed amendment to the voters of the state at the next regular general election in the manner provided by law.
Section 3. Effective date.
If the amendment proposed by this joint resolution is approved by a majority of those voting on it at the next regular general election, the amendment shall take effect on January 1, 2011.
There’s an old saw about legislation: if you want to know what its really about look for the passage concerning the red-haired, one eyed man with a cane and a a limp. Wimmer’s red-haired man is in the final line his proposed amendment:
to designate or authorize employee representation
Wimmer is staging a pre-emptive attempt to block a portion of the Employee Free Choice Act (an act, mind you, which has not passed yet). Like the second part of Amendment 3, Wimmer’s line about employee representation is really the crux of the issue.
Unions, as Robert Reich argued, are good for America:
: Go back about 50 years, when America’s middle class was expanding and the economy was soaring. Paychecks were big enough to allow us to buy all the goods and services we produced. It was a virtuous circle. Good pay meant more purchases, and more purchases meant more jobs.
At the center of this virtuous circle were unions. In 1955, more than a third of working Americans belonged to one. Unions gave them the bargaining leverage they needed to get the paychecks that kept the economy going. So many Americans were unionized that wage agreements spilled over to nonunionized workplaces as well. Employers knew they had to match union wages to compete for workers and to recruit the best ones.
Forming a union is almost impossible today. Mismanagement at the Federal agencies responsible for Labor Law combined with deliberate regime of laws designed to weaken labor have reduced unions to less than 10% of the total labor force.
Although America and its economy need unions, it’s become nearly impossible for employees to form one. The Hart poll I cited tells us that 57 million workers would want to be in a union if they could have one. But those who try to form a union, according to researchers at MIT, have only about a 1 in 5 chance of successfully doing so.
The reason? Most of the time, employees who want to form a union are threatened and intimidated by their employers. And all too often, if they don’t heed the warnings, they’re fired, even though that’s illegal. I saw this when I was secretary of Labor over a decade ago. We tried to penalize employers that broke the law, but the fines are minuscule. Too many employers consider them a cost of doing business.
The Employee Free Choice Act – EFCA for short – is aimed at increasing penalties for employees who violate workers’ rights, as well as making it easier to form unions through a process called “Card Check.”
Here’s how it works:
In our current system, if 30% of employees sign a card stating they want a union, the process of forming a union begins. During this process, employers often hire consulting firms who specialize in defeating union organizing attempts – experiences that can include mandatory sessions lead by specialists in anti-union propaganda, various forms of intimidation and a host of sleazy tactics that result in terminations (for instance, WalMart has been known to change employees’ work schedules for the next day after they leave work – so when they show up at what they thought was their scheduled time the next day, they are late for work, or they are early and have to leave then come back; other companies will set productivity goals that only a small portion of the workforce can meet and hold everyone equally accountable for meeting them). Under the current system, employers can drag out the process of forming a union for months, even years and face little or no penalty.
The legal environment favors employers who negotiate in faith, who actively fight unions, even engaging in illegal acts to do so.
Under EFCA, if a majority of employees sign union cards, the union automatically becomes the designated negotiator for employees – this is called Card Check. It negates the need for a secret ballot election to form a union. (Which I’ll come back to.) Consider this analysis of EFCA:
For all the controversy, EFCA is a surprisingly modest bill, with provisions aimed at strengthening existing labor laws rather than altering them substantively. Under EFCA, if Rite Aid had been found guilty of making illegal threats or of spying or of intimidation, it could have faced a monetary penalty—up to $20,000 per incident in cases of repeated violations. If Rite Aid had been found to have illegally fired a union supporter, it would have been required to pay not just the back wages, but three times the back wages. And if contract negotiations were being conducted without results, either party could seek federal mediation after ninety days. If, after thirty additional days, negotiations were still stalled, then an arbiter would be able to impose a contract settlement that would last two years. This would prevent employers (or employees) from running out the clock with bad-faith talks.
Attacks on card check miss the point. Union elections in many workplaces are hardly the picture of what most Americans would consider a healthy, open election. Employers determined to derail unionization are able to undermine, attack and alter the process. The problem is simple: in a fair and open election, both sides want a vote. In union elections, employers don’t want a vote – the longer they delay the vote, the more likely they are to defeat a union effort. Card Check is a way around that – allowing a majority to form a union with an “official” vote. It’s important to note that EFCA doesn’t eliminate secret ballot voting, it creates a circumstance under which it becomes one way of forming a union, while Card Check is another.
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.
HJR 08 is an attempt not to preserve elections but to pre-empt card check. The real test of this bill is simple: Would Rep Wimmer accept a substitute without the line about employee representation? If not, then you know he has no real interest in clean elections or secret ballots, just in attacking unions. I hope some reporter asks him the question.