Union organizer pines for EFCA

This account of a California organizing attempt has not turned out well for one of the employees involved.

A National Right to Work Law?

Senator Jim DeMint (R SC) has proposed passing a national right to work law. Texas Governor Rick Perry and former Massachusetts Governor Mitt Romney have said they both support it. This is, of course, a reaction to the Boeing case where the NLRB has issued a complaint against the company for building a second Dreamliner production line in South Carolina allegedly because the Machinists' union engaged in strikes in Washington State where the company had announced the expansion would be located. For a small government Party, the Republicans are awful quick to federalize certain issues which advance their agenda. Unions do the same thing (see EFCA). Under current law, states have the right to choose whether they permit an agency shop or not. An agency shop is one where a company and a union can agree that the employees are required to join the union. Federal law also says such arrangements cannot require actual membership in a union, only that an objecting worker pay partial dues attributable to the unions collective bargaining services. In the 22 right to work states, unions and employers are not permitted to require union membership, or any payment in lieu thereof, as a condition of employment.

Dana undone

In 2007 the NLRB decided Dana Corporation, a thoughtful decision about how to safeguard employees rights to select their bargaining representative. In Lamons Gasket Co., (download here) the Board returns to its pre-Dana law which does not allow a challenge to voluntary recognition by dissident employees. There is always potential for collusive or abusive action in a voluntary recognition scenario (where an employer agrees to recognize a union without an election to determine majority status support for the labor organization). Dana provided a mechanism for a significant number of employees to challenge voluntary recognition by petitioning the NLRB to conduct a secret ballot election to determine whether the union actually represented an un-coerced majority of the employees. This was a pro-employee decision and a prototype for labor reform that avoids the EFCA albatross of eliminating secret ballot elections. Our previous posts are here and here. Essentially card check majorities would be valid, unless 30 percent of the affected employees petitioned for a secret ballot election within 45 days of being notified of voluntary recognition. While many Bush Board decisions altered labor law in ways that advanced employer interests to the detriment of labor, Dana was an enlightened attempt to protect employee rights.

FAA closed

The Federal Aviation Administration (FAA) has been shut down due to Congressional inaction. And one of the reasons is a technical labor issue. Republicans view the changes to the election process for selection of union representation to be too friendly to labor. The issue is detailed in this previous post.

Details (and the devil in them)

The NLRB has issued a fact sheet and resources links to provide guidance regarding the dramatic changes in the NLRB's election process. Before a union may represent a group of employees it must establish it is the chosen representative of an un-coerced majority of those employees. Where the issue is contested, the NLRB conducts a secret ballot election. Under the old rules an election is normally conducted between 45 and 60 days from the filing of a petition. The new rules are designed to streamline the process, eliminate an employer's ability to obtain a decision on voter eligibility before the election, and shorten the time between the filing of a petition and the conduction of the election. While this is not EFCA, it certainly advances some of the goals of the failed legislation. Details after the jump

Dead EFCA

American Spectator has a pretty good "obituary" for EFCA.

Federalizing Right to Work

Senator Jim DeMint has introduced national right to work legislation which would outlaw compulsory unionism on a national basis rather than leaving the issue up to the states. It is co-sponsored by seven other Republican senators, including our own David Vitter. I cannot help but think that this is essentially an anti-state's rights initiative. If you read the press releases it almost seems like the legislation would allow voluntary unionism without need of establishing majority status, but that surely is not the case, rather just the public relations face.

Preemption of state secret ballot legislation

Earlier this month NLRB General Counsel Lafe Solomon urged threatened to sue four states unless they acknowledge their recently passed state laws requiring secret ballot elections are preempted by the NLRA. The four state's attorneys general have now responded. The point asserted is that the state laws are consistent with the NLRB's current law which also requires a secret ballot election when an employer refuses to recognize a union voluntarily. If that were the end of discussion, the AG's would be correct, but the head scratchers would ask what is the reason to pass such legislation. It is widely believed the legislation is a preemptive strike against the possibility the NLRB might change its rules, or Congress might pass something like EFCa. If such a conflict arose, it would be real and implicate federal preemption. Also, the state laws purport to regulate voluntary recognition, which likely will revert to pre-Dana law which guarantees no secret ballot election.

EFCA or taxes?

Many years ago as a young management labor attorney I subscribed to Mother Jones. That raised a few eyebrows at my first employer/law firm, but I found it very helpful to understand leftist and in particular pro-labor viewpoints found in the magazine. After all much of my work involved representing employers undergoing union organizing efforts. More than a few times the information derived from Mother Jones was helpful in providing advice to employers. Kevin Drum has an interesting piece in the online edition. He poses the question of what choice would employers make if forced to choose between passage of EFCA or a return to Clinton era tax rates on high income. He not only answers the question, he also provides compelling reasons for the choice. There is also a fascinating chart showing the distribution of wealth since 1979.

Mediation and binding arbitration

H.R. 129, recently introduced would require employers to submit collective bargaining contract disputes to binding mediation and arbitration. This bill addresses one of the most controversial (after card check recognition) aspects of EFCA. It has no chance of passing.

Nullification!

Four states have passed laws requiring secret ballot elections by workers on unionization. This insurance policy was taken out by republican and business interests last November, even though EFCA was already dead. Now the NLRB has threatened to sue the states unless they agree the laws are unconstitutional and preempted. A few years back, I would have bet this was a slam dunk issue for the NLRB, but the scope of Garmon preemption may not seem as broad for the current Supreme Court. We have already entered a time when serious talk of nullification of federal laws by state officials would raise John C. Calhoun from eternal rest and spin Andrew Jackson a few times in his grave. Can serious talk of narrowing preemption when it serves to undercut federal authority be far off?

Different rules

Pro-labor poster Mike Elk gets it partly right in this post. The NLRB is willing to make incremental, mostly symbolic changes in the rules to aid unions in their organizing attempts. He correctly notes the absence of significant remedies for egregious violations. However he gets it plain wrong (like so many others) when he says shortening of time between a petition for an election and the conducting of the election is a cure for employer intimidation. It isn't.   A meaningful, civil, non-threatening dialogue is not only appropriate prior to an important vote, but necessary for an informed electorate. Card check recognition and instant elections hinder an informed vote. If the problem is employer intimidation, punish the employer's misconduct, don't stifle the discourse or impose a different sort of coercion by eliminating secret ballot elections.

Secret Ballot Protection Act

Is this the new issue? Maybe, but it has less chance of becoming law in the next two years than the horrific Employee Free Choice Act ever had. This Red State poster wants to ramp up and bludgeon "teh unions" now that votes can be forced by anti-labor forces in the House. What a waste of time. Such legislation will not get through the Senate, much less past a Presidential veto. Realistic reform might take hold if rational discussions were undertaken by both sides. Yes, the penalties for flagrant violations of the NLRA should be enhanced, even where real remedies might chill an employer a bit in its efforts to remain non-union. But in return, big labor must be willing to back off card check and permit fair secret ballot elections to determine if an un-coerced majority of workers want a union or not. No union should be imposed on a workforce without majority support established by a secret ballot determination of the majority's will.

Dana Corp uninformtion

Sometimes the posturing goes overboard, like here. The poster, a frequent source of pointed anti-EFCA, anti labor posts, does a disservice to the legitimate arguments against both. We have consistently written in favor of the NLRB's 2007 decision in Dana Corp, and its positive protections which avoid collusive imposition of a union on a workforce without a secret ballot election to determine majority status. We have argued Dana Corp would have been a better pattern for EFCA reform than EFCA. We still believe that to be true. But the reality is Dana Corp changed labor law, and the Obama Board's return to pre-Dana law of recognition (the old law was in place for 50 years) is less remarkable than the Dana decision itself. Posters who suggest otherwise are uninformed, or worse.

You couldn't be more wrong

Sometimes you have to laugh at the stretch used to make political hay. This piece from the Cato Institute makes the argument that Samuel Gompers, the iconic labor leader, who opposed government intervention on behalf of workers in the early years, would today also oppose government intervention. This often used tactic effectively persuades some readers because the source of the alleged assertions is not challengeable by the target audience. The problem is Gompers lived in a different time. He died in 1924, prior to the Great Depression and prior to the passage of the National Labor Relations Act. He lived in an era where many actions of state and federal police powers actively discouraged labor's economic self help agenda. More after the jump

State anti-EFCA measures

Four states (Arizona, South Carolina, South Dakota and Utah) passed provisions requiring secret ballot elections to determine a union's majority status. First, it is extraordinarily unlikely the NLRB will abandon secret ballot elections, so any petition would be processed under the current, long-standing secret ballot election procedures used by the NLRB. As for voluntary recognition situations, under which employers and unions may by-pass the election process, the effect is less certain, but absent a major rethinking of federal preemption, I do not see how states can permissibly regulate the process of determining majority status by card check or other non-election evidence that a majority of the employees support unionization.

Dead EFCA beaten again

Dead horse beaten for lively political purposes.dead horse, EFCA, labor reform, political posturing

Dead horse again

EFCA is a dead horse that keeps getting beaten. If anymore proof is necessary look at what these candidates in close senate races are saying. Truly labor has itself to blame here for insisting on card check as the cornerstone of labor law reform. All that insistence did is create a sound bite for the opposition. "We oppose getting rid of secret ballot elections." By its own insistence labor allowed itself to be portrayed as undemocratic and even unAmerican. There is zero chance EFCA will get passed in a lame duck session.

EFCA and Dana Corp.

The 2007 NLRB decision in Dana Corp. probably irritated labor as much as any decision of the Bush Board. Essentially it gave employees an opportunity to contest the validity of a showing of a union's majority status by card check. Before a card check campaign could result in certification of a union, employees must be notified and provided a 45 day window to rally against card check and present evidence sufficient for the NLRB to conduct a secret ballot election. In reality this approach created a rationale safety valve to prevent coercive card check tactics. We have argued before unions should have embraced this model and should have adopted it as their reform proposal. It would have liberated the labor reform movement from the valid accusation it was attempting to eliminate secret ballot elections. Under Dana, the unions have seen few card check majorities successfully challenged. Thus, unions could have likely attained a new election process model which would have allowed majority status to be established by card check, subject only to employees havinv=g a brief window in which to challenge the validity of the card check majority. This article does a pretty good job of reviewing the issues. Unfortunately it looks like the new NLRB will revert to the old law under which a union can obtain voluntary recognition from an employer based upon card check alone. Frankly, this incentivizes collusion between an employer and a labor organization to accept a card majority which may not reflect the informed choice of a majority of the employees at any given time. There were a lot of questionable decisions by the Bush Board overturning years of Board precedent, but Dana Corp was not one of them. It properly protected the employees interest in having their collective will more likely determined in a fair manner.

Obama on EFCA

The Hill notes that President Obama conceded yesterday that the chances of passing EFCA are "not real high" although the legislation retains the administration's support. But passing a law is not the only path to change. The President also noted that many of the changes to the rules of union organizing sought by labor could be enacted administratively without need for congressional action.