Employee Free Choice Act
This article was written by Roger P. Gilson, a partner in our Stamford, Connecticut office.
Secretary of Labor Hilda Solis’s comments at the AFL-CIO annual meeting last week confirmed speculation that, with or without the resolution of health care legislation, President Obama will announce his recess appointment of Craig Becker to the National Labor Relations Board when Congress breaks for the Easter recess. While this effectively could preclude Becker from serving a normal five-year term, he would serve for about a year-and-a-half, enough time to have a profound impact on labor relations in this country.
In addition, some say the President also will appoint to the Labor Board union-lawyer Mark Pearce, who was previously nominated, and an as-yet-unnamed person (this would be in place of Bryan Hayes, the previous nominee for the currently vacant “Republican seat” on the Board). Some believe a recess appointment of Becker would be something the President can deliver to his labor supporters in advance of the upcoming mid-term elections.
Filling the Board’s vacancies with recess appointments now would give the Board time to achieve significant labor law reform through rulemaking without EFCA, which is unlikely to pass any time soon. Under current law, the NLRB, without Congress, may implement significant change through administrative rulemaking. It did so when it issued rules on the appropriate bargaining unit for acute care hospitals, which significantly reduced delays in scheduling union elections within that industry.
Rulemaking could be used to streamline election procedures, expand voting “access” through electronic or absentee balloting and enhance special remedies and penalties for employer unfair labor practices in initial organizing and first contract situations. Along with traditional case-by-case decisionmaking and the development of internal agency policies, the Board could use rulemaking to realize some of the advantages unions sought, but have yet to achieve through EFCA.
The Chairman’s statement could signal slower change than forecast – but don’t bank on it
For the first time in more than two years, the Board has clear quorum. The question now turns to how the agency will exercise its authority. This is an issue of no small concern. For an agency that is supposed to bring order and stability to labor-management relations, change and uncertainty are unsettling. This is all the more true when its Chairman expresses seemingly conflicting intentions.
We have heard that the NLRB, now firmly in Democratic hands, would kick over the traces of the “Bush Board.” In short order it would reverse precedents that were deemed inimical to organized labor and employees, some may say. Chairman Wilma Liebman, herself, has signaled her eagerness to make changes. Yet a close examination of her views suggests changes in Board law could take place more deliberately - maybe. That two of the four members, Craig Becker and Mark Pearce, will owe their positions to Presidential fiat, rather than Senate confirmation, matters more to the Chairman, she professes, than many would allow.
This is not the first time Ms. Liebman has been on a Board of recess appointees. It happened in 2002. Speaking to both union- and management-side labor lawyers about her experience at the American Bar Association meeting of the Section of Labor Law (August 13, 2003), then-Member Liebman was quoted as saying, “Recess appointees should be hesitant to overrule precedent because it could be seen as a rush to judgment and undermine public confidence. In contrast, a decision to overrule precedent by a fully confirmed board can be perceived as having more credibility.” She continued, “Recess boards should be caretakers and keep the railroad running and not make major policy decisions.”
At least that is what she said when Republicans controlled the Board. We will be watching keenly whether Chairman Liebman will keep the Board from jumping the tracks of established policy now that Democrats are in charge. Regrettably, few, if any, practitioners (management or labor) believe she will remain true to her word on this. Odds are Liebman and Becker will work at peak throttle to reverse major Board decisions in order to fulfill their vision of Labor Law Reform, while bypassing Congress. This “EFCA-lite” likely would include:
- Rapid-fire elections
- Diminished ability for employees to receive information from management and make an informed decision
- Much earlier union access to employees names and addresses
- Access to employer premises for union organizers
- Restrictions on employers’ ability to communicate effectively with their own employees
- Union access to employer-maintained electronic technology
- Doubt created over the supervisory status of first line managers
Should the new “recess Board” fail to stay within the limited role the Chairman has espoused, an explanation certainly will be expected from her. It may be called for sooner rather than later.
According to Politico, it appears that Andy Stern’s selected successor for SEIU President, Anna Burger, may lose to rival Mary Kay Henry. It is interesting that a union that often speaks about “democracy” and “voice” is engaged in quiet deals to “elect” its new leader based upon the “voice of membership.”
Ironically, Mr. Stern, the great champion of Employee Free Choice, is not offering free choice to his membership by allowing them to vote for their next leader. Is he really so afraid of the secret ballot election? If so, perhaps the union should ask members to sign cards for one candidate or the other, followed by a “card check” to determine the winner? Instead, SEIU members will have no voice at all in selecting their next president.
We will have to wait for the decision of the union's executive board (we guess by secret ballot and not signed cards) to see who wins. Nonetheless, many of the points raised in Ms. Burger’s letter to the Executive Board (http://www.politico.com/static/PPM136_100421_anna_burger.html) merit discussion.
1. Ms. Burger says the SEIU is “beacon of hope” for workers “…around the world.” Unions are going global to match their target employers. This is why Jackson Lewis is expanding our international reach as mentioned in the webcast (https://lrp.webex.com/lrp/lsr.php?AT=pb&SP=EC&rID=39936417&rKey=b0a9727c11580eb1).
2. Her admission of issues with HERE and NUHW is a prelude to settlements. And watch for the AFL-CIO and CTW to re-unite. Indeed, Ms. Henry may even accelerate the process.
3. “We have the best President of our generation” for “the next 7 years” is a call for even more political activity by the SEIU. The union’s two million members need to keep their wallets open for ongoing political contributions. We wonder if Ms. Henry disagrees.
4. Ms. Burger’s urging to “…use health care reforms…” for SEIU growth is a clear admission that the union wanted an expansion of health care to grow its membership. The closer we get to a national health market, the closer we get to the SEIU being the controlling national union impacting all Americans each day. Ms. Henry will be even more aggressive with organizing as the union needs money desperately.
5. Ms. Burger wants “to push…the labor-friendly majority on the NLRB” to make it “easier to organize.” No surprise. This is what we said would happen. The stars are in alignment.
6. Her reference to the rights of “immigrants” means immigration reform is alive and well and the SEIU wants those 12 million people as members.
7. Ms. Burger wants a larger slice of the public sector workers. Since the SEIU has negotiated contracts which are literally bankrupting the public sector, this is a frightening thought. The SEIU’s political skill to support or oppose politicians who support or oppose the union is very effective.
The speculation that Ms. Burger believes more in the “political role” of the union than Ms. Henry is really only a matter of degree. Similarly, as far as organizing is concerned, in light of its financial condition, the union must get more members no matter who leads it.
The following is from the U.S. Chamber of Commerce:
Today, Sen. Blanche Lincoln (D-Arkansas) made an important announcement about her position of the “Employee Free Choice Act” (EFCA). According to a statement recently released by her office, she said:
While I may not have been clear about my position in the past, I am stating today that I cannot support Employee Free Choice Act in its current form and I can’t support efforts to bring it to Senate consideration in its current form. I will consider alternatives that have the support of both business and labor but my pledge today is to focus my full attention on the priorities I have mentioned that affect every working family in Arkansas.
The U.S. Chamber strongly opposes this legislation. There are three problems with Card Check:
1. Eliminating the Private Ballot
Card Check would effectively eliminate private voting.
Under the existing law today, workers have a chance to vote for or against unionization in a private-ballot election that is federally supervised. Under Card Check, if more than 50% of workers at a facility sign a card, the government would have to certify the union, and a private ballot election would be prohibited--even if workers want one.
By forcing workers to sign a card in public--instead of vote in private--Card Check opens the door to intimidation and coercion. Over 70% of voters agree that a private election is better than card check.
Card Check could put government regulators in charge of private business decisions.
Once a union is certified, the business and union would only have 120 days to reach agreement, before facing the prospect of being forced into binding arbitration. This means a panel of government arbitrators who may have no understanding of the business could impose a two year contract deciding all workplace terms--without any vote by the company or its employees.
By placing government regulators in charge of a two-year decision, business flexibility is limited--at a time in our history when it is needed most. A recent poll found that 75% of voters believe government arbitrators should not decide the conditions of a union contract.
Card Check would unfairly punish businesses.
Card Check would impose harsh new penalties on businesses--but not on unions--for violations during the union recognition process. This is unfair, and potentially disastrous for small or medium businesses, who are not familiar with unionizing campaigns or the National Labor Relations Act. If Card Check passes, many of these businesses would be facing unionization for the first time.
What Is the Card Check Bill?
The principle purpose of the Card Check Bill is to make it easier for unions to organize. Under current law, if union organizers collect signatures from at least 30 percent of the employees in a bargaining unit, the federal National Labor Relations Board will hold an election to determine whether to certify the union. This process, established and refined through decades of experience, carefully balances the interests of employees, unions, and employers in order to ensure that workers can hear all sides and then make up their minds and vote in private, without intimidation or coercion. Today a majority of elections are held within 39 days and a majority of union elections are won by organized labor.
Because union density has dropped so low (to about 7.5 percent in the private sector), organized labor is seeking to change the rules and make it easier to organize. The card check bill would do just that – instead of determining whether a union would be certified through a federally-supervised secret ballot election, the union would be certified the moment it collected a majority of signed authorization cards. The Card Check Bill would therefore eliminate the campaign period and the legal requirements that regulate it, not to mention eliminating the ability of employees to make an informed decision in private. Instead, employee decisions on unionization would be made in front of union organizers greatly increasing the opportunity for coercion and pressure in the union organizing process.
A secondary, and less well known, purpose of the bill is to amend collective bargaining law so that when a union is recognized for the first time government arbitrators will set all the terms and conditions of the union contract unless the union and the employer can meet unrealistic timelines. Today, the law requires that the parties bargain in good faith and recognizes that the union, representing workers, and the employer are in the best position to determine whether an agreement is acceptable and whether compromising on one goal in order to achieve another is acceptable. The Card Check Bill's mandatory interest arbitration provisions would remove any incentive for the employer or the union to adopt realistic bargaining positions, as each would be posturing for the arbitrator, and would give the arbitrator control of the most basic business decisions. It would also deny employees the right to vote on ratification of the contract.
Finally, the Card Check Bill would increase penalties for employers, but not for unions or others, who violate union organizing laws.
For a more detailed description of what the Card Check Bill would do, please see:
>> U.S. Chamber Card Check 2008 Policy Paper (PDF)
>> U.S. Chamber congressional testimony
Are Authorization Cards Used Today?
Yes. Authorization cards are used in two ways today. First, authorization cards can be used to demonstrate that enough workers are interested in a federally-supervised secret ballot election. Although coercion and intimidation does occur in soliciting cards for this purpose (PDF), the fact that workers ultimately get to make their final decision on the question of unionizing in the privacy of a voting booth is an important protection to help ensure that true employee free choice is preserved.
Authorization cards are also used as part of corporate campaigns. Some labor unions have all but abandoned traditional organizing that allows workers to vote on whether they want to be represented by a union. Instead they wage pressure campaigns against employers, called corporate campaigns, to try to get the employer to agree to utilize a provision in the law to evade employee elections. Under these provisions, a union can simply collect signed authorization cards and then be "voluntarily" recognized by the employer without ever conducting a vote. In addition to demanding that no election be held, unions typically also seek to pressure the employer to give up its free speech rights so that workers will only hear one side of the arguments about unionization. Because corporate campaigns, sometimes called "the persuasion of power," are such an integral part of today's union organizing, the Chamber has published a briefing book, authored by George Washington University Professor Jarol B. Manheim, for policy makers outlining corporate campaign tactics and trends (PDF). The Card Check Bill would seek to make it impossible for employers to resist such campaigns.
Of course, doing away with elections comes with a high price. Authorization cards used without elections have been inextricably linked with cases of pressure, coercion, and other unsavory union tactics (PDF). This is why federal courts have repeatedly noted that secret ballot elections are the preferred method of union recognition.
>> What Courts Have Said (PDF)
Would the Card Check Bill Impact Employers and Employees in Right to Work States?
Yes. If a state has a Right to Work law, that means that individual employees can opt out of joining a union or paying union dues. In other states, employees can be required to pay union dues and fees. Some unions view it less advantageous to undertake organizing campaigns in Right to Work states, since they cannot collect compulsory dues. However, were the Card Check Bill to become law, organizing campaigns would become cheaper and easier for labor unions, making businesses in Right to Work states a more attractive target. Employers subject to such campaigns would not be able to insist on union elections for their workers and would be subject to increased penalties and compulsory interest arbitration of union contracts.
What You Can Do
The Chamber has been aggressively fighting the Card Check Bill (see a selection of our radio ads) and even won an award for its grassroots efforts in 2007. But we need your help if we are to be successful in the future. You can start by sending a letter to your Senators and Representative and asking that they oppose this bill when it comes up. You can also draft letters to the editor for your local paper and help educate others about this dangerous legislation.
Would Card Check Eliminate Secret Ballot Elections? America’s Leading Newspapers Say Yes
