If our nation was governed by business's version of democratic choice, we would hold elections to determine the winner, but nearly half the time the incumbent would remain in power even if he lost.
In its campaign to derail the Employee Free Choice Act (EFCA), business has fearlessly depicted itself as the defender of elections and the secret ballot as well as the foe of the dread "card check" - the process, championed by unions and included within EFCA, that would allow workers to sign union affiliation cards rather than compelling them to go through a ratification election in which harassment and firings of workers are all too common.
But the kind of democratic choice that business favors is choice without consequence - a position made clear by its opposition to the other key component of EFCA: binding arbitration between company and union if they've been unable to agree on a contract within 120 days of a union winning the election. A study of first-contract negotiations by John-Paul Ferguson and Thomas A. Kochan of MIT's Sloan School of Management makes clear why such arbitration is needed. After surveying 22,000 unionization campaigns between 1999 and 2004, the authors found that even after a majority of workers voted for a union, they actually reached a contractual agreement with management (which is currently under no legal obligation to come to an agreement) only 56 percent of the time.
Heads, management wins. Tails, the employees lose.
It's a lovely system for businesses that don't want to pay higher wages or accord their workers some rights, and they've been fighting hard to keep it that way. They've managed for now to cow some cowable Democratic senators, which is why Iowa Democrat Tom Harkin, who is trying to steer EFCA through the Senate, is negotiating with a number of his colleagues. "It's a moving target," Harkin says.
That it's moving at all is the result of Arlen Specter's hop from Republican to Democratic ranks, which has compelled Specter to look to his left instead of his right to see where his next opponent is coming from. Just as the threat of defeat in next year's Republican primary concentrated Specter's mind and sped him out of the GOP, so the threat of a union-backed opponent in the Democratic primary - spurred by Democrats' bewilderment and anger at Specter's post-conversion opposition to the president's budget, his cheering on the spectral candidacy of Minnesota Republican Norm Coleman and his opposition to card check - has prodded Specter to find some middle ground on reforming labor law. (It takes a rare talent to alienate not just the party you're leaving but also the party you're joining, yet Specter's been up to the task.)
Labor, Harkin and his fellow liberals are willing to make changes to EFCA to win the support of their Democratic colleagues, so long as those changes don't perpetuate management's ability to avoid unionization by threatening workers and refusing to negotiate contracts. Accordingly, the scramble is under way for modifications to card check and binding arbitration that still meet labor's goals.
Rather than give the arbitrator the right to impose a contract, some senators, Specter among them, have expressed interest in a form of arbitration used in baseball to settle contract disputes. In a baseball arbitration, the union and management submit their proposed contracts to the arbitrator, who tries to get them to narrow their differences, asks for their final offers and chooses the one he finds more reasonable.
Among the suggested alternatives to card check are proposals to shorten the currently open-ended period between the request for election and the actual vote (today, management can stall a vote almost indefinitely) and to allow workers to vote by mailing their ballots to the National Labor Relations Board in Washington, which (like absentee voting) would preserve the secret ballot but enable workers to escape the regimen of threats they often encounter in the weeks preceding an election.
If, after all the negotiations, Harkin and the unions conclude that the only bill that's enactable in this congressional session is too watered down to protect workers trying to unionize, they would, understandably enough, not want it to go forward. In that case, why don't the Democrats just put the original bill - card check, binding arbitration and all - to a vote and see which of their members choose to go on record against protecting those workers? If Specter and his fellow waverers wish to avoid that vote and the wrath it would incur among their onetime union backers, they'd do well to support the alternative provisions that restore Americans' rights in the workplace.
Meyerson is editor-at-large of American Prospect and the L.A. Weekly.