Wednesday, February 28, 2007

Employee Free Choice Act

Card Prof. Matt Bodie (currently at Hofstra, but moving to Univ. of St. Louis), has an excellent post on the Employee Free Choice Act (EFCA) over at PrawfsBlawg.  The EFCA, of course, would require the NLRB to certify a union that obtained authorizations cards from a majority of employees, much like Canada does.  However, this "card check" recognition is controversial.  Indeed, one of the last legislative acts by Charlie Norwood (R-Ga.) before he died was to propose the Secret-Ballot Protection Act, which would prohibit an employer from voluntarily recognizing a union based on a card check.  BNA's Daily Labor Report has an article (subscription required) today indicating that the legislative battle over EFCA will come down to whether Congress can override a presidential veto, so stay tuned.

As Matt notes in his post, the argument for the EFCA is to minimize the coercive nature of an election campaign, although he acknowledges that it would deprive employees some information about the costs of unionization.  I'm generally in favor of EFCA, although I recognize that implementing the bill by itself has some problems.  I'm not sympathetic to employer objections, however, because the law is currently titled heavily in their favor.  Therefore, my ideal would be to include card-check recognition as part of a broader reform package that would strengthen penalties for campaign misconduct, while also making it somewhat easier for employees to decertify a union (as a former student of Sam Estreicher at NYU, I've often heard the mantra "easy-in/easy-out or hard-in/hard-out").  Of course, any significant modification of the NLRA is unlikely--I'd bet against the EFCA becoming law--much less a comprehensive change.


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There was also a great article in the Washington Post ( by Lance Compa at Cornell.

Posted by: laborlawyer | Feb 28, 2007 10:23:15 AM

Many of the arguments in favor of this bill are disingenuous if not hypocritical. One who really believed in "employee free choice" would oppose compulsory unionism. A better approach than this proposal would be to preserve the benefits of elections (secrecy, opportunity for full debate) but reduce the incidence of improper pressure by imposing serious monetary penalties for election interference such as threats, promises of benefits, and illegal discharges.

Posted by: Dennis Nolan | Feb 28, 2007 7:29:25 PM

I subscribe to Dennis Nolan's post. The selection mechanism, i.e. the ballot box, has NOTHING to do with the real issues in this "debate" (or is it payback time for union dues monies spent on Democrat votes. Reform the process not the mechanism recognized since the 1840's as preserving one's right to choose without having to endure post choice pressures, potential ostracism, etc.

Posted by: John Raudabaugh | Mar 2, 2007 8:46:37 AM

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