President-Elect Obama on EFCA

President-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.

Former Board Member Peter Kirsanow also spoke about the bill on January 17 with the host of America's Business, a production of the National Association of Manufacturers. A link to the audio is here, and Kirsanow's interview starts around 21:30.

Follow-Up on Proposed Reform

Joe 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 telephone voting make me nervous, and I can see union organizers giving incorrect phone numbers on the cards, or manipulation of internet, etc.

The NMB has used telephone voting for 6 years and internet voting for over 1 year without any report of a security breach. Fortune 500 companies use the same technology for shareholder votes, and I’m not aware of any reported security breaches there. In short, I don’t think there’s a reasonable concern that unions will hack the system. (Also, keep in mind that the Board has for a very long time conducted mail-ballot elections. Do you think that internet and telephone voting is less secure than mail balloting?)

I recommended telephone and internet voting because, unlike manual balloting, it allows for a 2-week voting period that starts a week after the petition is filed. The Board can’t accomplish that with manual balloting.

Now, moving onto your idea about "limited" bargaining rights. Perhaps I misunderstand your proposal, but doesn't the concept of representing only those who supported the union fly in the face of a secret-ballot vote? Are you espousing that employees publicly declare their allegiance to either the union or the employer? Sounds like an EFCA end around and it has the same problems of any public vote, or card-check.

The law currently permits members-only bargaining, absent a 9(a) exclusive representative. I'm merely proposing requiring it in this limited context to eliminate the potential for years of post-election delay in the unionization process.

The important point is that the election has already been held, interim membership will not affect the election tally, and the incentive for coercion of employees has thereby been greatly reduced. The ULP process will be available for any coercion that did occur.

Again, the delay between vote and certification of the unit is NOT the problem that the unions are making it to be, as your statistics correctly point out. Most elections are certified in 10 days and bargaining can then begin.

Most election results are certified shortly after the election. Interim, members-only bargaining won’t affect employers or unions in those cases. In the minority of cases where a long delay occurs between election and certification, interim, members-only bargaining will promote collective bargaining, one of the Act’s enumerated purposes.

The REAL problem unions are faced with in the collective bargaining process is that the union is coming to a negotiation with nothing to offer an employer. If you went into negotiations with a car dealer with NO money, and NO credit, you'd get NO car. The union brings no customers, and no capital for an employer. Why would they agree to any improvements if they didn't see a business benefit to it?

Unions offer employees (their consumers) an opportunity to require their employer to sit at the table and listen to their concerns. Some employees consider this a valuable commodity. Other employees don’t. Employees, speaking through their representative, sometimes have some good input for employers. Employers sometimes improve working conditions based on that input. Sometimes they improve working conditions based on economic pressure exerted by their unionized employees.

I could go on, but you probably stopped reading a while ago. I certainly commend the thinking outside the box for your ideas, even though I couldn't quite agree with them.

Thanks for your comments.