Legal Commentary

Those of us teaching Labor Law last semester had a rare treat: a proposal to amend the National Labor Relations Act, in a significant way, made the news. Students brought it up on their own, presidential candidates were discussing it, and my own friends and colleagues were asking me about it. I say "rare," because the NLRA is notoriously difficult to amend. Since 1960, there has only been one, relatively minor, amendment (applying the NLRA to hospitals). Indeed, NLRA amendments are exactly comparable to playoff victories by the Detroit Lions, in terms of frequency and significance, in the last half-century. Wait, that?s another post. . . .

Most of the public debate over EFCA has concerned the "card check" provision. My take on EFCA, in short, is this: "card check," while an easy target for opponents to attack, is not nearly as radical as opponents claim; the second part of EFCA, which would stiffen the remedies for employer violations of the NLRA during union organizing campaigns is obviously justified; and that the third part, which would mandate binding arbitration if the parties could not agree on a first contract within a specified time period is the most interesting and radical part of EFCA.

First, card check. Yeah, yeah, how can anybody oppose elections? I?ll get into why the union elections aren?t much like political elections, but I?ll begin by suggesting that requiring employers to recognize unions if the union produces cards, signed by a majority of workers in an appropriate bargaining unit where there is no proof of coercion or fraud, is not actually a radical idea. For one thing, mandatory card check was the law under the NLRA until the 1950s.

Also, from the passage of the NLRA through today, employers always have been allowed to recognize unions via card check and without an election. This means, among other things, that EFCA does not take away any right that any employee has to an election. EFCA would merely take away the right of an employer to force an election, in the face of a valid majority card showing. Employees would still have the same rights to, say, decertify the union later. Indeed, under Dana Corporation (NLRB 2007), before a card check recognition would be granted any protection from a decertification election, there must be a 45-day window after the recognition in which 30% of the employees are entitled to demand an election.

Further, in the public sector, where labor law is state and local law, five or six states have enacted mandatory card check recognition. I am not aware of any incidents of menacing union/mob stereotypes ? the kind one sees in anti-EFCA ads ? coercing employees in these jurisdictions. Similarly, mandatory card check recognition is the law in some Canadian provinces.

Second, to understand both the card check and remedies parts of EFCA, one has to understand that lots of folks think that the union election process is fundamentally broken. There are many studies on this. To summarize a few results: 91% of employers force employees to attend intimidating one-on-one meetings with supervisors; 51% illegally threaten to close their worksite when employees try to form a union; 30% unlawfully fire workers who support forming a union as a way of intimidating others. An alarmingly high percentage of employees feel that they would be fired if they supported a union in a union election process.

Now you may say, "but that?s illegal, sp why don?t unions and workers just bring claims?" The problem is the uniquely weak remedies under the NLRA. An employee fired for union organizing gets the right to reinstatement and backpay ? minus whatever the employee made or should have made while waiting to be reinstated. And after all the litigation and appeals, reinstatement usually takes years. Compare other employment law statutes, like the FLSA (double damages, attorneys fees) or Title VII (punitive damages, consequential damages, emotional distress damages, attorneys fees); none of that is available under the NLRA. It?s clear that a not-insignificant number of employers intentionally violate the NLRA because the penalties are so trivial. So, I think, the part of EFCA that would increase penalties for employer violations during union organizing campaigns is a no-brainer.

Finally, EFCA would require mandatory arbitration for first contracts when the employer and union haven?t reached agreement. This addresses the problem of employers refusing to agree to contracts with unions, then provoking strikes and/or decertification campaigns, thus frustrating the purpose of the NLRA. A study by Kate Brofenbrenner shows that in about one-third of cases in which unions vote for representation, after a year, employers still have not agreed to labor contracts. Current law does not require any agreement; it merely requires bargaining "in good faith." Again, the remedy for violating the duty to bargain in good faith is almost comically weak: it?s an order to begin bargaining in good faith ? which often takes years to get ? and that?s basically it. Also, if the union and employees reach an impasse during bargaining, current labor law allows management to implement its proposals unilaterally.

EFCA allows employers or employees to request mediation by the Federal Mediation and Conciliation Service (FMCS) if no agreement on a first contract has been reached after 90 days of bargaining. If the FMCS is unable to bring the parties to agreement after 30 days of mediation, the dispute must be referred to binding arbitration. Unions and employers can agree to lengthen these time limits.

Binding arbitration is a relatively radical idea under the NLRA, in that the NLRB and courts have always been loathe to do almost anything that would set substantive terms of labor contracts. On the other hand, such procedures are common in the public sector in the U.S., and are used in a number of Canadian jurisdictions. Also, it?s likely that if this part of EFCA were enacted, the vast majority of negotiations would not actually use binding arbitration; rather, the law would serve as an incentive to bargain in true good faith.

I don?t have any inside information, but obviously there will be a tough fight over EFCA, and compromises might well be made. Along those lines, I note that the public sector jurisdictions that use binding arbitration to resolve bargaining impasses tend to have very specific rules about how the arbitrations should work (e.g., what criteria arbitrators should use). Some more details might be useful in EFCA?s arbitration section. I also wonder whether, if the unions got the tougher remedies, they would feel quite as strongly about either or both of the other two sections. So we?ll see if EFCA will pass as written, or at all. One thing is for sure, however: in the next couple of years, labor law reform is looking a lot more likely than another Lions playoff win.