Thursday, May 7, 2009

More Political Developments On EFCA

NLRB The political machinations surrounding the proposed Employee Free Choice Act keep getting more and more interesting.  Given the amount of news being released from key senators, it looks like EFCA is getting to the legislative front burner.  Steven Greenhouse at the New York Times has one of the more thorough takes on EFCA's current prospects.  As is no surprise, we've hit compromise stage, with proposals for early voting (in the same vein as a related proposal by Benjamin Sachs (Harvard)) or quicker elections recently coming to the fore. According to Greenhouse:

To win more support and prevent any intimidation, Senate Democrats are considering a proposal pushed by Senator Dianne Feinstein, the California Democrat. In a procedure similar to the early voting that precedes elections in many states, workers could sign cards and mail them to the National Labor Relations Board. If a majority mailed cards, the board would order the employer to recognize the union, as it now does when a majority of workers vote for a union through secret ballots. . . .

Tom Harkin of Iowa, the bill’s chief sponsor in the Senate with Edward M. Kennedy of Massachusetts, has held intense talks in recent days with several Democrats, including Ms. Feinstein and Arlen Specter of Pennsylvania, who recently left the Republican Party.  Mr. Harkin said, “There is one thing that won’t work, and that is the status quo.” He added, “Another key point is not to have these long drawn out elections that become an all-out war.” . . .

Several union leaders said they might support changes that would call for holding secret-ballot elections within a week or two of the labor board ordering an election, thereby preventing long, acrimonious campaigns. . . . [Union leaders also] said they would accept legislation with fast elections only if it included arbitration and tougher penalties for companies that break labor laws. . . .

Randel K. Johnson, the United States Chamber of Commerce’s vice president for labor affairs, criticized quick elections. . . . But Mr. Harkin said, “If the Chamber of Commerce says they’re opposed to everything, then they’re not going to be a player.” He cited a proposal by Mr. Specter that might help preserve the arbitration provisions. Under it, the arbitrator would choose between offers by an employer and by a union. “The last, best offer idea might have legs,” Mr. Harkin said.

Given the number of proposals circulating, it's hard to predict at this point what, if anything, may end up passing.  I find Harkin's final thought about an arbitrator picking among proposals to be particularly interesting.  The Postal Service has long used this form of arbitration, although it's not always pretty.  I'm not sure if that's the best way to go across the board, however, as the Postal Service has a long relationship with its unions which may make "pick a proposal" arbitration more feasible than it would be in other workplaces. [Apparently I was wrong about the Postal Service, which uses typical interest arbitration, with three member panels (one union, one employer, one neutral).  My question about the feasibility of "pick a proposal" arbitration still stands, however.]

Hat Tip: Benjamin Sachs, Justin Keith, and Dennis Walsh


Labor Law | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference More Political Developments On EFCA:


Would it be objectionable for a union agent or coworker to be present when an employee marked her ballot and deposited it in the mail?

Posted by: Brett | May 7, 2009 9:07:00 AM

A number of public sector labor laws provide for arbitration to settle impasses in which the arbitrator can only choose the proposals of one side or another. Indeed, there are two variations on this: (i) total package (arbitrator can only choose all the employer's proposals or all the union's proposals; and (ii) issue-by-issue (arbitrator can choose the union's final offer on some issues and the employer's final offer on other issues).

It would be good if the arbitration part of EFCA was redrafted to be more specific about how it would work. For example, most-all public sector laws using binding arbitration to resolve impasses also specify what factors arbitrators should/must consider in making their award.

Posted by: Joseph Slater | May 7, 2009 2:15:20 PM

Statutorily imposed binding arbitration of any kind in the private sector is wrong. Long term results in the public sector are self-evident.

Posted by: JR | May 8, 2009 6:41:04 AM

But would unions ever agree to give up their right to strike (as is the case with public sector employees) in exchange for binding arbitration? I doubt it.

Posted by: Justin Keith | May 8, 2009 7:05:31 AM

JR -- How would you propose to reduce or eliminate bad-faith bargaining with newly certified unions? Or don't you think there is such a problem?

Posted by: H. Blankenhorn | May 8, 2009 8:34:47 AM


The "long term results" of binding arbitration aren't "self-evident" to me, except to the extent that this process has, at least often, reduced the incident of illegal public sector strikes. Do you prefer legalized strikes for public workers?

Posted by: Joseph Slater | May 8, 2009 9:13:44 AM

All this talk about favorable comparisons to the public sector really doesn't go very far, in my opinion. No private-sector union is going to give up its right to strike, but they'll expect management to give up their right to say "no" to an unreasonable contract proposal. Others (including, I believe, JR) have said it very well before: increase enforcement (and perhaps penalties) of bad faith bargaining cases for both employers and unions and let's stop wasting our time with this nonsense about foisting contracts on employers and employees.

Posted by: Justin Keith | May 8, 2009 11:52:59 AM


Since I was at least one person making comparisons to the public sector, let me stress that I don't necessarily disagree with you. I would prefer to at least try increased enforcement and penalties for bargaining in bad faith before using binding arbitration in the private sector.

But let's not kid ourselves: a significant number of employers have created this problem by doing everything they can -- including intentionally violating the law -- to avoid first contracts as a tactic to encourage decerts. I'm not personally overwhelmingly sympathetic to their complaints that a solution that is less than ideal from their point of view is now on the table.

Posted by: Joseph Slater | May 8, 2009 12:58:51 PM

I wonder if "Several union leaders ... might support changes that would call for holding secret-ballot elections within a week or two of the labor board ordering an election" if such provisions applied DEcertification and deauthorization elections, too?

Posted by: James Young | May 13, 2009 7:50:21 PM


Have any Union leaders opposed fast elections for the same, or is behavior simply the same as the Chamber and National Association of Manufacturers, which is anything different is bad?

I haven't seen any union leaders supporting your call, but I have not seen any opposing it either.

Posted by: Per Son | May 14, 2009 7:31:35 AM

Well, Per Son, that they support a bill which would provide for expedited elections ONLY in the context of certification --- just like its proposal to impose penalties only for EMPLOYER unfair labor practices --- demonstrates the one-sidedness of this proposal. It demonstrates a flaw in conception.

Of course, you are much more influential with Union [sic] bosses than am I. You take your best shot. See if you can persuade them to look less self-serving.

Good luck.

Posted by: James Young | May 17, 2009 4:45:14 PM

Post a comment