2009-01-16T23:35:57.623-05:00President-Elect Obama recently discussed the Employee Free Choice Act with the Washington Post editorial board. The audio is here, and the relevant portion starts at the 56-minute mark.
2009-01-14T08:13:52.044-05:00Joe Brock, from Laboring Away at the Institute, posted a comment to my proposal for labor law reform. Below, I break his comment into segments and respond. His comments are in italics and my responses are in bold type.I've been looking over your proposal with some interest, and I have some comments that i'd like to share. Your statistics are obviously well researched, and I think these statistics would be surprising to the general public who might not have the benefit of the numbers. For example: You correctly note that the median time between petition and election was 39 days in 2007. I think that would surprise many who have come to the conclusion in listening to the unions argument that it routinely took much longer. I think that 39 days from petition to election is about what it SHOULD take to make such a potentially career changing decision. You focus on the half of elections held within 39 days and say the law does a good job. I focus on the half of elections that take more than 39 days (including 7% that take more than 56 days and the small minority that take many months) and say that the law can do a substantially better job. There is no need to wait months. We can do better.7-21 days is clearly not enough time if you want your employees or potential members to do their own research based on the facts being offered in a campaign. Who you choose to represent you will impact your income and possibly your personal future more so than who you choose to be your President.Twenty-one days is long enough for employees to perform independent research. Employees would be free to wait that long before casting their ballots. Employees who think they have enough information would be free to cast their ballots 7 days after petition (but no sooner). Employers are thus guaranteed 7 days to communicate their views. That is plenty of time. Moreover, nothing would prevent employers from communicating generally about unionization before any petition is filed. Employees appreciate as well anyone that their decision is important and that each side’s views should be taken with a grain of salt.Holding an election without a decision on the apropriateness of the unit being clarified is a non-starter with me. As you correctly point out, these issues are rare, and the Board does a great job in getting the parties to reach agreement on this when it becomes an issue. I think that if there was going to be a "trial run" it would open up the potential for MORE questions of appropriateness, allowing the employer a free bite at the apple, or a peak under the covers, as it were. Win the "trial run" and drop the question. Lose the election and appeal forever. It would get abused as part of an election strategy.What if the Board were to conduct the election, impound the ballots, fully resolve any dispute over unit appropriateness, and finally conduct the tally of ballots? That procedure would alleviate your concern about an increase in unit-appropriateness disputes because employers would have to litigate the issue before knowing the election result. That procedure would also prevent unit-appropriateness disputes from greatly delaying elections and thereby minimize the temporal opportunity for coercion by both sides. I'm also not on board with Internet and telephone voting. little or no delay in the election process can be attributable to the physical process of setting up a time and place. 28 days doesnt normally become 40 because the Board agent has a scheduling conflict. Besides, i've been involved with many union elections. The process currently in place is damn near impossible to manipulate. You walk into a room with observers from both sides, you fill out a ballot in secret, put it in a box that never leaves anyones sight. The Board agent knows how many ballots went out, and they're printed on unusual paper. They count them in front of everyone. It's the fairest election process i've seen. In fact, it's the ONLY fair process as far as unions go. This is why they want to change it. Internet and telepho[...]
2008-09-22T22:51:00.405-04:00Delay is a significant problem under the NLRA. The Board took more than 100 days to resolve 21% of representation cases in the fourth quarter of FY 2007, and initial bargaining can be further delayed by an appeal to a circuit court. NLRB Performance & Accountability Report FY 2007 at 39-40.At least two types of delay can occur during the representation process, thereby postponing initial bargaining: (1) the delay between the date an election petition is filed and the date the NLRB conducts the election; and (2) the delay between the date of election and the date of a final determination that the employer is legally obligated to bargain with an elected union. The first type of delay occurs in all representation cases. The second type of delay occurs in a small minority of cases. However, that delay can be extremely long, and it severely frustrates employees’ collective-bargaining rights. Both types of delay are largely a consequence of current law, not the fault of Board personnel.To speed up the representation process, I propose that the Board start conducting elections by telephone and the internet, as does the National Mediation Board. Second, I propose holding elections before resolving disputes over unit appropriateness. Finally, I propose a statutory amendment that would impose a limited duty to bargain immediately upon a tally revealing that a majority of employees voted in the union’s favor. Below is an elaboration of the problem and my proposals. I’m looking forward to anyone’s comments or counterproposals.Delay In Holding ElectionsIn the vast majority of cases, at least 28 days elapse between RC petition and election. The median was 39 days in FY 2007. Memo GC 08-01, at 2. In seven percent of cases, it took longer than 56 days. Id. In a very few cases, it can take quite a while. See, e.g., TransCare Paratransit, 29-RC-11482 (2008) (8 months); Marymount Manhattan College, 02-RC-23151 (2008) (17 months).Long delays between petition and election are sometimes attributable to a dispute over the appropriateness of the petitioned-for unit. Parties were unable to reach an election agreement in 8.8% of RC cases in 2007 and 11.9% of RC cases in 2006. Memo GC 08-01, at 6. The Board’s current practice is to resolve a dispute over unit appropriateness before holding an election. See Sections 101.20 and 101.21 of the Board's Rules and Regulations. Understandably, it takes the Board some time to resolve the factual and legal issues presented. The election is held afterward.Delay between petition and election creates an opportunity for parties to coerce employees before they have recorded their sentiment. Even absent coercion, long delay tends to frustrate an organizing movement as employees’ interest in unionization might naturally wane. Thus, to promote collective bargaining and free choice, employee sentiment should be recorded as quickly as possible after the filing of a petition (while ensuring that all parties have notice and an opportunity to discuss unionization before a vote is taken).Facilitating Speedy ElectionsTo facilitate speedy elections, I first recommend that the Board adopt the National Mediation Board’s telephone and internet voting procedures. See NMB Representation Manual, Section 13; Internet Voting Comment Period, 34 NMB 200 (2007); Introduction of Internet Voting/Mock Election, 34 NMB 71 (2007); Telephone Electronic Voting, 29 NMB 482 (2002). The NMB has conducted elections by telephone since 2002 and by the internet since October 2007. The NMB assigns each voter two codes to be used in conjunction to keep voting anonymous and secure. Thus far, the NMB’s technology has maintained ballot secrecy.Using telephone and internet voting, the Board could feasibly hold elections over a period between 7 and 21 days after the filing of the RC petition. Upon filing, the Board could quickly notify the employer, require the employer to immediately post an election notice, obtain an Excelsior list, and send voting instruc[...]
2008-07-23T09:00:10.042-04:00Here is a some video from CNBC's Squawk Box of Senator Orrin Hatch criticizing the Employee Free Choice Act.
2008-05-12T12:52:12.267-04:00As discussed at Workplace Prof Blog and Debris, the Wall Street Journal has reported on an agreement between SEIU and UNITE HERE on the one hand and two employers on the other that the unions won't seek to represent certain groups of those employers' employees. SEIU and UNITE HERE currently represent some of those employers' other employees.
2008-11-18T12:17:01.033-05:00After reading the written testimony to the Senate HELP Committee, I sent five questions to Cynthia Estlund and one question to Peter Hurtgen. They kindly agreed to let me post their answers.Questions to Cynthia Estlund1) How exactly would the EFCA's card-check provisions reduce employer coercion?A: Card check limits the employer’s opportunity to wear down the employees over weeks or months, and it would limit the opportunity to extend that period through procedural maneuvers. (Union avoidance consultants, which most employers hire when faced with a union organizing drive, are quite candid that they often need several weeks or more to erode the union’s majority.) Because majority sign-up is a rolling process, the impact of the employer’s campaign may also be diffused by the fact that some of the employees the employer is targeting have already signed up. The Eaton & Kreisky study (cited in my testimony) shows that, one way or another, employees report much less pressure from any source in card check than in election campaigns (and much less pressure from the union than from the employer in either type of campaign).2) Are you concerned that, under the EFCA, a law-abiding employer can lose the opportunity to engage in non-coercive speech on the disadvantages of unionization?A: There generally is time for the employer to convey information. First of all, employers are entitled to (and some do) tell employees their views on unionization in general from the first day on the job. As for information about the particular union, except for some very small units, the card check campaign doesn’t stay secret from the employer.In any event, employees don’t obviously have any less information about the union before signing a card than they generally have about the employer before taking a job. You can only learn so much before starting the job. So, too, the best way to learn about what it’s like to have a union is having a union. If you don’t like what you learn over time, and if a majority of your co-workers share your views, you can simply tell the employer that, and the employer can or even must withdraw recognition. When employees are dissatisfied with their employer, by contrast, their only real option is to quit (which of course is no less an option when employees are dissatisfied with the union).Finally, let’s keep in mind that employees who actually have union representation overwhelmingly say they prefer to keep it – 87-90 percent. Opponents of card check often seem to assume that it is some huge and fateful step for employees to choose union representation. But we make a lot of choices in life that are harder to undo, and that have at least as important consequences, with a lot less information and certainly without having to undergo a highly adversarial campaign over its merits.3) Would you support legislation that directly prohibits employers from engaging in non-coercive speech on the disadvantages of unionization?A: Apart from constitutional and other problems with such a prohibition, I have doubts about its enforceability, and the impact on already horrendous delays at the NLRB. (If I were able to snap my fingers and enact labor law reform, I would be more inclined to limit employer’s ability to compel employees to submit to captive audience meetings and/or their ability to exclude union organizers from the workplace than to regulate what they can say.) EFCA takes a different, less interventionist approach that allows organizers and employees to choose a different campaign structure instead of further restricting employer conduct.4) You declined to express an opinion on Section 3 of the EFCA, which addresses mandatory interest arbitration. Do you support Section 3?A: I do. Interest arbitration is not an ideal end to collective bargaining. But it’s necessary response to a serious problem, and it’s a better spur to good faith bargaining than[...]
2007-03-26T09:38:46.328-04:00The Senate Committee on Health, Education, Labor, and Pensions is holding a hearing on the Employee Free Choice Act on Tuesday, March 27 at 9:30 a.m.
2007-03-07T11:02:42.188-05:00On March 1, the House passed the Employee Free Choice Act (EFCA), H.R. 800, 110th Cong. (2007). That bill is highly unlikely to become law anytime soon. Senate Republicans will surely filibuster the bill, and Vice President Cheney has stated that President Bush will veto the bill if it reaches his desk. The bill probably will not garner enough support to overcome a Republican filibuster, much less a Presidential veto. Nevertheless, the bill merits discussion.If enacted, the EFCA would: (1) obligate the NLRB to certify a union based on a card check; (2) permit a newly-certified union to subject an employer to mandatory interest arbitration if the parties’ negotiations fail to produce a first contact; and (3) impose harsher penalties on employers that violate the NLRA.Proponents of the EFCA argue that current law does not adequately protect employees against employer coercion and that employees therefore cannot truly exercise free choice when deciding whether to select union representation. Under current law, an employer may lawfully refuse to recognize a union until the union wins an NLRB secret-ballot election. To obtain an election, a union must garner support from 30% of employees and file an election petition. The Board immediately notifies the employer about the petition and schedules an election. The median interval between petition and election is 39 days. During that time (i.e., the campaign period), an employer has an opportunity to unlawfully coerce employees by, for example, discharging union supporters, soliciting grievances, promising benefits, and threatening plant closure. The campaign period also creates an opportunity for employers to hold repeated non-coercive and non-objectionable captive-audience speeches and one-on-one discussions in which they urge employees to vote against union representation. Proponents argue that such speech (which I will call “unbalanced speech”) interferes with employee free choice, even though it is non-coercive and non-objectionable, because employees do not hear from unions to the same extent.EFCA supporters seek to eliminate or reduce unlawful coercion, objectionable conduct, and unbalanced speech through, among other means, card-check certification. Under the EFCA, the Board would certify a union after receiving a petition along with signed authorization cards from a majority of employees. There would be no election, and hence no formal campaign period. If a union is able to quietly gather cards from a majority of employees without the employer’s knowledge, the employer will lose its opportunity to counter the organizing drive with coercion and unbalanced speech. Even if an employer informally learns about an organizing drive, it might have fewer days to respond to the union’s campaign than the approximately 39 days it has under current law. For these reasons, proponents argue that card-check certification will help employees exercise truly free choice.Opponents of the EFCA counter that the secret-ballot election is the only method that ensures free choice. Behind the voting booth’s curtain, an employee can privately decide whether to vote for or against representation without either party knowing how she voted. If the EFCA is enacted, non-employee union organizers and pro-union employees would unlawfully coerce employees into signing cards. At best, some employees would sign a card after succumbing to lawful peer pressure in order to please organizers and pro-union colleagues. Some EFCA opponents assert that most employers do not coerce employees during union campaigns and argue that card-check certification is not the way to handle the bad apples.Would card-check certification reduce coercion, objectionable conduct, and unbalanced speech by eliminating the formal campaign period? Somewhat, in my opinion. In some cases, unions will quietly gather ca[...]
2006-11-28T10:41:04.506-05:00Edward B. Miller died on November 10, at the age of 84, after a long struggle with Alzheimer's disease. Miller, a Nixon appointee, served as NLRB Chairman from June 1970 to December 1974.
2006-11-21T12:19:31.636-05:00The NLRB has updated its website. The website allows anyone, after registering, to access an electronic docket of any case pending before the Board. For example, you can view the electronic docket for Midwest Generation, 13-CA-39643, by clicking here and inserting "Midwest Generation" in the "Case Name" box. I discussed the Board's decision in Midwest Generation in this post. In that case, the Board held that an employer did not violate the Act when it locked out full-term strikers while allowing non-strikers and crossovers to continue working. The Seventh Circuit refused to enforce that decision and remanded the case to the Board with an order to find that the partial lockout was unlawful. The electronic docket is interesting in that it shows that the Board initially authorized the General Counsel to ask the Solicitor General to file a cert petition. Evidently, that didn't work out. The Board never filed a cert petition, and it actually opposed the employer's cert petition. The Supreme Court ultimately declined to take the case.
2006-10-13T10:00:47.976-04:00The New York Times has a very interesting article on proposed labor-law reforms in China. David Barboza, China Drafts Law to Boost Unions and End Labor Abuse, N.Y. Times (Oct. 13, 2004).
2006-10-11T17:16:22.483-04:00A colleague recently speculated that some employers will respond to Oakwood by giving their employees the authority to “assign” or “responsibly direct” other employees in order to render them statutory supervisors. In the case of rotating charge nurses, he predicted that some employers with the same motive will increase the regularity and substantiality of the time the nurses spend as charge nurses.
Despite organized labor’s extreme rhetoric calling the Oakwood Healthcare decision “shameless”, “cheap”, a “semantic trick”, and redefining NLRB to “National League of Republican Businessmen”, few individuals will be “deprived” of their rights. First, unlike healthcare, most industry sectors do not employ significant numbers of professionally trained, scientific, or advanced degreed individuals who, additionally, might also qualify for the “supervisory” exclusion. Second, unless unions actually engage in organizing, any mass “deprivation of rights” is theoretical. Targeting the NLRB when it was responding to two rebukes from the Supreme Court to “get it right” is wrong-headed. It is the 1947 amendments to the 1935 Act that is the basis for the NLRB’s ruling on who is or who is not a “supervisor.” Of course, therein lies organized labor’s objective – political rescue. This issue surely will be at the top of their legislative agenda in the new Congress.
2006-10-07T09:07:35.643-04:00The Board issued a decision "refining" the analysis it employs to determine whether workers are "supervisors" excluded from the NLRA's protections. Based on a quick scan of the decision, it appears that the Board applied its refined standard to find that twelve permanent charge nurses were statutory supervisors but that other nurses, who served as charge nurses on a rotating basis, were not statutory supervisors. Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006) (Battista, Schaumber, and Kirsanow in majority; Liebman and Walsh dissenting in part).From the majority opinion:In interpreting the statutory terms “assign,” “responsibly to direct,” and “independent judgment” as set forth in this decision, we have endeavored to provide clear and broadly applicable guidance for the Board’s regulated community. Our dissenting colleagues predict that our definitions will “create a new class of workers” who are excluded from the Act but do not exercise “genuine prerogatives of management.” We anticipate no such sea change in the law, and will continue to assess each case on its individual merits. In deciding this case, moreover, we intentionally eschewed a results-oriented approach; rather, we analyzed the terms of the Act and derived definitions that, in our view, best reflect the meanings intended by Congress in passing Section 2(11) and would best serve to effectuate the underlying purposes of the Act. If our adherence to the text of and intent behind the Act should lead to consequences that some would deem undesirable, the effective remedy lies with the Congress.From the dissenting opinion:If the National Labor Relations Act required [the majority's interpretation]—if Congress intended to define supervisors in a way that swept in large numbers of professionals and other workers without true managerial prerogatives—then the Board would be dutybound to apply the statute that way. But that is not the case. The language of the Act, its structure, and its legislative history all point to significantly narrower interpretations of the ambiguous statutory terms “assign . . . other employees” and “responsibly to direct them” than the majority adopts. The majority rejects what it calls a “results-oriented approach” in interpreting the Act. But the reasonableness of the majority’s interpretation can surely be tested by its real-world consequences. Congress cared about the precise scope of the Act’s definition of “supervisor,” and so should the Board. Instead, the majority’s decision reflects an unfortunate failure to engage in the sort of reasoned decision-making that Congress expected from the Board, which has the “primary responsibility for developing and applying national labor policy.”The NLRB issued this press release describing the Oakwood decision. The AFL-CIO has issued this press release criticizing the Board's decision, and the U.S. Chamber of Commerce issued this press release supporting it. Here are some articles addressing the Board's decision:Steven Greenhouse, Board Redefines Rules for Union Exemption, N.Y. Times, Oct. 4, 2006Dale Russakoff, Some Workers Change Collars, Wash. Post, Oct. 4, 2006 at D01Barbara Rose, Board Decision Could Bar More From Unions, Chicago Trib., Oct. 4, 2006Lois M. Collins, Unions Criticize Ruling on Nurses, Deseret Morn. News, Oct. 4, 2006Diane Stafford, Labor Board Decision Goes Against Unions, Kan. City Star, Oct. 4, 2006Anya Sostek, , Pitt. Post-Gazette, Oct. 4, 2006NLRB: Nursing Supervisors Not Eligible for NLRBWill Lester, NLRB Redefines Union Eligibility, Lacrosse Trib., Oct. 4, 2006Alejandro Bodipo-Memba, Unions: Ruling Hurts Nurses, Det. Free Press, [...]
2006-01-05T00:33:52.546-05:00On January 4, President Bush recess appointed Ronald E. Meisburg as the General Counsel and Peter N. Kirsanow as a Member of the NLRB. The President had nominated Meisburg and Kirsanow for these positions in July and November 2005, respectively. Both of those nominations have been referred to the Senate Committee on Health, Education, Labor, and Pensions, as was the President's April 2005 nomination of Dennis P. Walsh to serve as a Member of the Board. The President declined to recess appoint Walsh.