EFCA compromise?

Last week Senator Arlen Specter (D. Pa.) indicated he had worked out a compromise on the Employee Free Choice Act. No bill has been introduced and the details are sketchy. When I spoke at the LSU Labor and Employment seminar in March on EFCA, I predicted Labor, and its allies in Congress, could not succeed with card check recognition which deprives employees of a secret ballot election. Taking away a right to vote in a secret ballot election is a sound bite that resonates with the public and the politicians. The political solution to this impasse has already been served up by the "Bush" Board and it looks like Senator Specter is embracing that path. More after the jump.

A Wall Street Journal opinion piece has suggested that the Specter compromise involves card check with an opportunity for dissenting employees to file a petition for an election which would be held promptly.

DISCLAIMER: I do not favor the solution posted below. It is a devil's advocate articulation of labor's best approach.

This looks like the Dana/Metaldyne solution I argued was labor's best position to take for passing reform. In Dana/Metaldyne the NLRB changed the long-standing law concerning voluntary recognition of a labor organization by an employer. Because the National Labor Relations Act imposes a union upon employees even when they individually object to representation, it is required that the Union establish that a majority of the employees in collective bargaining unit desire union representation. The preferred method for ascertaining majority status is a secret ballot election. Its been that way for years. Unions have convinced a number of employers not to oppose unionization. In those circumstances a union can present to an employer evidence of majority status among the employers employees either by authorization cards or petition signed by employees. An employer may then voluntarily recognize the union based upon this showing of majority status.

The problem with this approach is employees often sign with the union without realizing the consequences. Often the employees are misled by union organizers. In a voluntary recognition situation there is also the possibility of collusion between the employer and the union. Moreover the consequences could be long lasting. After voluntary recognition, under the law that existed pre-Dana/Metaldyne, the union enjoyed an irrebuttable presumption of majority status for at least a year, and if a contract was signed, the presumption carried forward for the duration of the contract up to a maximum of 3 years. This period of representation could easily extend to 4 years or more from voluntary recognition. Recognizing this, the "Bush" Board in 2007 created a safety valve for dissenting employees allowing them to petition for a secret ballot election within 45 days of notification of the voluntary recognition. The Board would not conduct an election unless the dissenting employees could present evidence that 30% of the employees covered by the voluntary recognition expressed a desire for an election.
Labor was apoplectic at the decision. Its one of many likely to be challenged when President Obama's nominees to the Board are confirmed.

But there is a political opportunity for labor to get a lot of what it wants and provide political cover for its friends in Congress. Labor should embrace Dana/Metaldyne as the model for all initial representation questions. Agree to support a process in both voluntary and contested recognition scenarios. That way it is truly up to the employees as to whether a secret ballot vote is needed to determine majority status. If more than half of the employees sign union cards, all employees would be notified of that occurrence, and further notified of the right to request a secret ballot election if 30% of the affected employees indicate support for an election. Labor should embrace this approach as politically possible, and understand card check is not.

Labor's real issue is diminishing the time an employer has to communicate the adverse effect unionization can have on employees. This can be achieved by imposing a short period of time for dissenting employees to garner the 30% support for an election and a shorter time for the election. The real fight will be over how much time. The Dana/Metaldyne 45 day period is much too long to satisfy unions. If labor were to take this approach it would be far more difficult to prevent 60 senators from voting to kill a filibuster. This approach could more appropriately be called the Employee Free Choice Act.

Labor must recognize that to get reform it must concede on card signing to get a better recognition/election process. There is significant support for enhanced remedies for violations and likely support for mandating greater union access to employees at work. Even baseball style arbitration is possible, but only if Labor will compromise.