NLRB: Employee Free Choice Act Ace in the Hole?
Is the Employee Free Choice Act still alive? Al Franken is now officially seated and the 60-vote caucus needed to overcome a filibuster on the Free Choice Act is in place. But just when unions should be rejoicing in the streets, it’s getting fashionable to write Employee Free Choice Act obituaries, like the one this morning in the New York Times. I think companies should keep a very close eye on the NLRB, because the news of EFCA’s death is greatly exaggerated – but I’m getting ahead of myself.
The “EFCA is dead” narrative goes like this. Unions have once again snatched defeat from the jaws of victory. Unable to overcome their petty internal squabbles, the labor movement is splitting at the seams. The major unions are split in half and talk of reuniting is evaporating in the summer heat. Unions are raiding each other like never before, including the very public divorce of United Healthcare Workers West from the SEIU, and the swan dive into an empty swimming pool jointly performed by UNITE-HERE’s dynamic duo Raynor and Wilhelm.
The narrative continues that Andy “Darth” Stern and his SEIU are most to blame for all this infighting. So-labeled from his “brothers” inside the labor movement, Leo Gerard of the Steelworkers said in the Times interview, “Every division in the labor movement seems to have Andy Stern’s fingerprints on it.” Especially as the SEIU start gobbling up big chunks of imploding unions like UNITE-HERE, there is a real fear that Andy Stern has decided to unilaterally implement his vision of the labor movement and the rest of the movement be damned.
All this dis-unity is being blamed for the problems with EFCA. Moderate Democrats are looking for the exits and it is clear that EFCA as it is currently proposed has nowhere near the 60 votes needed for passage. Instead Tom Harkin and Arlen Specter are negotiating a derivative version of the current bill, one that they hope will get the other votes they need. The most likely provisions of the “derivative” version of EFCA are the following:
- Quick Elections (14-21 days) instead of card-check;
- Interest arbitration (baseball arbitration) as a remedy for bad faith bargaining;
- Union access to employees (getting a voter list earlier in the process, possible access to employer property); and
- Increased penalties
So let’s assume for a minute that unions can’t get 60 senators to support EFCA or an acceptable derivative version. What then? Well, the most likely compromises do not require ANY action from the Senate, not when unions are about to be hand-delivered the NLRB.
Wilma Liebman has made no bones about her support for reforming the nation’s labor laws generally, and she welcomes the debate on the Employee Free Choice Act specifically. Once she has a Board majority she will have the full power to implement massive labor law reform without the need for a single Senate vote.
Consider, for example, the vote period. The current 42-day vote window that unions complain about so wildly is completely Board created. The statute says nothing other than the Board will conduct an election. It could just as easily be 7-days or 14-days or 21-days after the petition is filed. The time limit is just a target, but the Board does a great job of meeting the 42-day target today and there is no reason to believe that they couldn’t meet a quicker target. So if unions can’t get a compromise on card-check, no problem. Just get the Board to shrink the vote window down to 7 or 14 days, which is effectively the same thing.
Another modification to “card-check” is the “postcard-check” proposal floated by Diane Feinstein. It simply says that instead of secret ballot elections held at the employer’s premises, there will be mail ballot elections where employees mail their ballots to the NLRB. Again, mail ballots are allowed and used under the current statute and there is nothing in the law that prevents the Board from changing its current practice and requiring mail ballots for all elections. It doesn’t take too much imagination to look at these ballots as authorization cards and realize that organizers will just show up at people’s homes to “encourage” them to vote the right way – the same way they “encourage” employees to sign a union card today. Bam – you’ve got card check.
What about interest arbitration? This one is a little trickier, but I still believe an activist Board could easily take a crack at this as well. Under current law there is something called a Gissel bargaining order. That is a Board created (and Supreme Court approved) order for a company and union to bargain in good faith, even in cases where the union failed to be certified in an NLRB-supervised election. The basic premise is that the Board is given authority under Section 10(c) to “take such affirmative action … as will effectuate the policies of this Act.” The idea behind a Gissel order is that the employer can be required to bargain – even if a union technically isn’t certified and the majority representative – where the Board concludes that the employer’s actions make a fair election impossible. The Gissel order is a way to force the parties into a situation they would have been in had the employer been operating in good faith.
Why couldn’t an additional remedy for bad-faith bargaining include an order for the parties to submit their dispute to binding, baseball-style arbitration? There is nothing in the Act that prohibits this remedy. Employers would certainly argue that this is overstepping the bounds of the Act (the same as they would if an arbitration provision were included in the Free Choice Act), but if it is constitutional in the one case it is probably constitutional as a Board remedy. After all, the only thing the Free Choice Act does is amend the National Labor Relations Act – if the mandatory arbitration provision of EFCA is constitutional, then the remedy under the current statute almost certainly is constitutional too.
Union access? This is also well within the Board’s power today. Unionized companies are already forced to provide union access at reasonable times and places, so the statute clearly allows such a provision. Many companies in the retail, healthcare and gaming sectors already have organizers on their property during union campaigns. It is easy to envision the Board trying to create some structure around the way employee meetings are held during election campaigns, including perhaps the requirement for equal time and equal access.
And granting the access to employee homes using the “Excelsior” list is also Board created. While today the list is only handed over after the filing of a petition, there is nothing that prevents the Board from requiring the list to be handed over much sooner (perhaps at the 30% point of support, maybe even sooner than that).
Finally, the fines against the employers. There is nothing in the Act that prohibits the Board from issuing fines – the remedy power is vague and says the Board can “take such affirmative action” as will effectuate the purposes of the Act. Most people would be surprised to learn that the Board already has the ability to fine persons who “willfully resist, prevent, impede, or interfere with any member of the Board or any of its agents or agencies.” That certainly could be interpreted more broadly to include egregious unfair labor practice activity. The current fine is $5,000 (and imprisonment of up to one year) but it is not clear whether that could be interpreted as $5,000 per incident. Not quite as good as a $20,000 fine per incident, but it’s a start.
Understand that I’m not arguing that each of these expansions of Board power would fly through without incident (and I’m the first to admit that the idea of adding fines or imposing mandatory arbitration as remedies would face a tough legal challenge). But the fact remains that nearly everything unions hope to accomplish with the Employee Free Choice Act can be accomplished without one single change to the current statute.
Board imposed changes won’t be permanent (but then again, neither is a legislative change – after all EFCA is an attempt to re-write the current statute) but they can at least start the ball rolling. They also might make legislative change that much easier down the road. But in the end the Employee Free Choice Act – or at least its key provisions – appear far from dead. Not when you have the NLRB as your ace in the hole.
Tags: Employee Free Choice Act, nlrb, seiu, service employees, unite-here
Employee Free Choice Act | admin | 
July 9, 2009 9:25 am | 
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