Friday, March 13, 2009

Fox on the EFCA

Fox23 Michael Fox (Ogletree) over at Jottings by an Employment Lawyer has a nice post today on the current mudslinging over the EFCA.  Here's an excerpt:

I think the opponents of EFCA are making a mistake focusing so much on card check. How a union is formed is important, and my belief is that the secret ballot is far superior to card check. However, in my view the most radical change contained in EFCA is binding arbitration for the first contract. The current national policy, which as mentioned above, is that collective bargaining is the preferred way of organizing the workplace, also is founded on the principle that an employer while required to bargain in good faith, was never forced to concede or agree to any point. To "force" concessions, unions have the economic power to withhold their labor, strike. If EFCA is passed as introduced, for first contracts this would no longer be true. If agreement is not reached, a solution will be imposed, which will require an employer (and employees) to be bound for two years. It represents a total reversal of the current policy, and so far is getting relatively little attention. If that continues, what will happen is that a "compromise" will be reached that retains secret ballot elections (albeit it with major changes designed to make it easier for unions to organize) but keeping binding arbitration for first contract. That would mean that one of the underlying principles of our current system will have been changed, with little discussion or my guess, is little understanding that it is even happening.

I think there's a good chance that Michael's prediction is spot-on.


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Fox's speculation about a compromise is the exact opposite of a rumor I heard, that unions would be willing to sacrifice the compulsory arbitration provisions in order to get card check through. Of the two possibilities, that one makes much more sense. Without card check, unions won't have any significant number of new first-contract disputes that might need arbitration. The fact that the sponsors haven't fleshed out the bill's arbitration provisions also suggests that they don't expect it to pass. If they did expect compulsory arbitration to be in the final law, they would surely have provided more guidance about arbitrators, procedures, and standards. Without any standards to control arbitral decisions, the law would be begging for a constitutional challenge.

I wonder, though, if both rumors could be wrong and if unions are willing to put the whole package to an up or down vote. The provisions are complementary --- arbitration is useless without new bargaining units, and new bargaining units wouldn't be able to get contracts out of anti-union employers without either a credible strike threat (unlikely in this economy) or compulsory arbitration.

Posted by: Dennis Nolan | Mar 13, 2009 8:10:19 PM

I think that all kinds of compromises are possible. Each side, in my judgement, is going to be assessing how the typical policy arguments play out with this, new, and somewhat unknown, electorate. I find it fascinating to follow the labor law debate going on in the blogosphere. While much of the debate is ill informed, in doctrinal terms, it reflects that a broader labor discussion has been re-ignited in a new generation. To be sure, this is only a small segment of the generation - but it is obviously an influential one. I think that what unions will not be willing to do is to have the current debate result in no reform at all - as in the 1970s - though I completely agree with the substance of Dennis's last sentence.

Posted by: Michael Duff | Mar 14, 2009 8:07:43 AM

The problem that I have with EFCA is that there are no additional safeguards to protect the workers from "misinformation." We all know that the way it currently stands, employers cannot threaten, interrogate, promise, or spy ("TIPS") during the campaign. But employers are at least able to provide credible information and employees are encouraged to ask questions and become informed about a union. With EFCA, I would have thought that there would be similar protections against union promises. In this tough economic times, unfounded Union promises of "job protection," "better benefits," and "more money" is just that... unfounded.

Posted by: Cheryl Sovern | Mar 14, 2009 1:09:06 PM

Fox may have a point on the relative radicalism of the various provision. The current focus is the explained by the difference between practical politics and theory.

Posted by: James Young | Mar 15, 2009 7:35:51 PM


I guess I am not really understanding. Since when is simple missinformation from either side illegal without anything else?

Posted by: Per Son | Mar 16, 2009 7:08:22 AM

Though I come at it from a different angle, I actually agree with Michael Fox and James Young that the interest arbitration provision is substantively more significant than card check. Interestingly enough, many of my more radical labor movement friends (people who are, to be sure, pretty marginal within the mainstream labor movement) are deeply suspicious of the interest arbitration provision, which they view as taking power away from rank-and-file workers.

Posted by: eric | Mar 17, 2009 7:25:42 AM

First, card check isn't as radical as opponents claim. Mandatory card check recognition was, basically, the law under the NLRA for a while under the old _Joy Silk_ doctrine. Also, voluntary card check (recognition without an election) has always been allowed, and a decent number of unions have been recognized that way in practice.

On the other hand, mandatory arbitration of contracts has never been required in the private sector, and there's been no practice of actually doing it that I'm aware of. Of course, there is a well-established practice in public sector labor law to resolve bargaining impasses (and not just first contracts) by arbitration.

The card-check provision is more prominent because EFCA opponents believed (accurately, IMHO), that it would be easier to attack with a simple talking point: hey, the other side is against elections and we're for them!

I'm actually optimistic that things would improve just with the third part of EFCA: significantly stronger remedies for employer ULPs during an organizing campaign. It's clear that one problem with the election process is that too many employers violate the NLRA with, essentially, impunity. Stronger penalties, one might reasonably suspect, would make intentional violation of the law to defeat an organizing campaign a less attractive option.

Posted by: Joseph Slater | Mar 17, 2009 11:03:16 AM

Well, I would disagree that prohibiting an election upon a card-check showing is not "radical." I would also assert that the "voluntary recognition bar" doctrine imposed by the Board is radical when a group of employees makes an otherwise adequate showing for an election, particularly given the risk of "sweetheart" deals, since only the employer is empowered to demand an election under such circumstances under current law.

However, Joseph's discussion of the third part reveals the truly lopsided nature of this legislation: why is it only employers who are deserving of greater penalties? Unions have been ignoring/defying CWA v. Beck, 487 U.S. 735 (1988), for more than twenty years. Yet none of the so-called "champions" of so-called "employee rights" are interested in imposing greater penalties for these violations of employee rights, probably because they are the recipients of monies exacted from unwilling employees.

Posted by: James Young | Mar 20, 2009 7:48:56 PM

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