More from Estlund and Hurtgen on the Employee Free Choice Act

After 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 Estlund
1) 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 what current law provides. (And that is mostly how it works in Canada, where the very large majority of cases that could be subject to interest arbitration end in voluntary agreements.)

The situation that first contract arbitration is meant to address is familiar and pretty disastrous: Employers, after failing in their union avoidance effort, can continue the fight, stall and delay, aiming not toward an agreement but toward impasse, knowing that all the Board will do is order more bargaining, and all the employees can do is strike, which will expose them to permanent replacement and eventually decertification. (In this they are following the fairly standard advice of those near-ubiquitous union avoidance consultants.) Many employees who manage to surmount the employer’s first anti-union effort lose out in the second phase. They end up with no contract and no tangible gains from their hard-fought campaign; after a year or two or three, demoralization and turnover often doom the union’s majority. It’s a very sad situation that calls for a significant change in the law.

5) Do you think that the EFCA's new remedies are sufficient to adequately deter employer coercion? Or, do you think that even greater remedies are required?

A: First, a lot of conduct that is legal is very coercive, especially over time and in the very intense form that it is often engaged in, given the employer’s overwhelming power over employees and the workplace. But even looking just at illegal forms of employer coercion, the new remedies are probably not a sufficient deterrent. The penalties are likely to be used sparingly. Treble backpay will mainly affect one especially coercive tactic – discriminatory discharges – and would still make the average backpay award under $12,000. That is surely not enough to deter the determined employer. Injunctive relief, and esp. preliminary reinstatement of fired activists, is important and potentially very helpful in undoing some of the harm to the organizing campaign.

The problem is that many employers seem to believe (wrongly, I think) that the fate of their business depends on keeping the union out (and their highly-paid consultants fan the flames of anti-union sentiment). It’s hard to know what it would take to adequately deter employers in that situation from taking advantage of their managerial prerogatives, and their ability to predict terrible consequences for the workplace as a whole (which they will be around to help bring about if they “lose”), to induce employees to vote “no.” That’s the thinking behind EFCA’s creation of the alternative structure of majority sign-up or card check. It’s not a perfect solution, but I doubt there is one.

The challenge is to change the labor relations climate – social norms, in part – so that more employers (like Cingular, Costco, Kaiser-Permanente) decide simply to deal with the fact of collective bargaining, and to normalize unionization again, so that it becomes one way of moving forward instead of a tooth and nail fight.

Question to Peter Hurtgen
Q: You declined to express an opinion on Section 4 of the EFCA, which provides for new remedies. Do you support or oppose Section 4? Do you think that the NLRA’s current remedies are adequate to effectively deter employer coercion?

A: I oppose section 4 and I believe present Board remedies are adequate or could be without an amendment to the Act.