EFCA Drops

by Brien Jackson

The Employee Free Choice Act is being introduced in both houses of Congress today, a move I fear is  a little rash. Considering the near lockstep opposition it’s likely to face from the Republican Party, I can’t really understand the efficacy of bringing it up before Al Franken is seated. I’m also a little nervous that the opposition has already won the PR battle by successfully branding the package “card check,” and claiming (falsely of course), that the bill would eliminate the right of workers to have a NLRB sanctioned election with a secret ballot. Tim Fernholtz offers up some thoughts on that:

The bill has three parts: Majority sign-up, which requires employers to recognized a union if a majority of employers sign up to indicate their preference; first contract arbitration, where an independent third party would ensure that the union and management reached their first employment agreement; and increase penalties for management violations of the National Labor Relations Act (firing pro-union workers, for instance).

All three provisions could be watered down, but despite the focus on majority sign-up and its so-called threat to the secret ballot, both management and labor are perhaps more invested first contract arbitration: management doesn’t want to be forced into any contract with a union (44 percent of newly-certified unions fail to do so) and labor wants a return on their organizing investment. Pro-labor legislators could pull a switch now, give up majority sign-up in favor of accelerated elections, and probably win the day with first contract arbitration and stiffer NLRB penalties — after all, the only real talking point conservatives have against the legislation is the false claim that it eliminates the secret ballot. On the other hand, majority sign up is more likely to pass without first-contract arbitration.

I think that’s mostly correct. The opposition has spent their time arguing almost exclusively against the majority sign-up part of the proposal. There have been some isolated criticism of first contract arbitration, but that’s both harder to understand in 30 seconds and somewhat harder to oppose than card check, so it’s largely been ignored. It’s easy to see, then, how Democratic willingness to drop the majority sign up provision could leave the opposition unable to mount a new, coherent, opposition to the remaining provisions. It also wouldn’t really hurt labor’s interests that much. First contract arbitration is arguably the most important part of the entire package. At present, even once a union is certified and the employer is legally obligated to collectively bargain with them, management will simply refuse to negotiate in good faith, and will drag out negotiations indefinitely. The upshot of this is that the workers eventually get tired of paying union dues and getting nothing in return, and as such will vote to decertify the union. The particularly bad thing about this is that there’s basically no recourse for labor. They can complain to the NLRB, who can rule that management isn’t negotiating in good faith and then…tell them to negotiate in good faith. And that’s basically the whole of their enforcement mechanism. But going to arbitration after a certain point would make it impossible for management to employ these stalling tactics.

I am, however, a bit skeptical about the idea that increased penalties could compensate for dropping majority sign up. It certainly works in theory; the problem now is that the penalties for breaking the law are less cumbersome for employers than following the law and having to deal with a union, and so the incentives exist to violate the law, pay the penalty, and move on with your union-free life. If the penalties were increased to the point that breaking the law was a major financial hit to the employer, or at least more taxing than having a union, the incentives for management would be to follow the law, and this would make the NLRB election process more equitable. I’m not sure, however, if the political will would exist to create a penalty structure that rigid, however.

On another level though, I’m oddly confident about the whole thing. The White House political operation has thus far proven to be both incredibly coometent and particularly cautious. With that in mind, I have a hard time believing they’d want to move on this issue if they weren’t confident they’d have the votes to pass it.