Joseph Slater of PrawfsBlawg evaluates the different parts of the Employee Free Choice Act and finds the conventional opposition to it, particularly regarding majority sign-up, to be lacking.
First, card check. Yeah, yeah, how can anybody oppose elections? I’ll get into why the union elections aren’t much like political elections, but I’ll begin by suggesting that requiring employers to recognize unions if the union produces cards, signed by a majority of workers in an appropriate bargaining unit where there is no proof of coercion or fraud, is not actually a radical idea. For one thing, mandatory card check was the law under the NLRA until the 1950s.
Also, from the passage of the NLRA through today, employers always have been allowed to recognize unions via card check and without an election. This means, among other things, that EFCA does not take away any right that any employee has to an election. EFCA would merely take away the right of an employer to force an election, in the face of a valid majority card showing. Employees would still have the same rights to, say, decertify the union later. Indeed, under Dana Corporation (NLRB 2007), before a card check recognition would be granted any protection from a decertification election, there must be a 45-day window after the recognition in which 30% of the employees are entitled to demand an election.
Further, in the public sector, where labor law is state and local law, five or six states have enacted mandatory card check recognition. I am not aware of any incidents of menacing union/mob stereotypes – the kind one sees in anti-EFCA ads – coercing employees in these jurisdictions. Similarly, mandatory card check recognition is the law in some Canadian provinces.
He also goes on to make a very powerful case for the strengthened penalties for employer violations in the Employee Free Choice Act is necessary, reasonable, and not objectionable. Regarding arbitration, Slater makes the important conclusion on the actual effect of binding arbitration mechanisms in the Act: “it’s likely that if this part of EFCA were enacted, the vast majority of negotiations would not actually use binding arbitration; rather, the law would serve as an incentive to bargain in true good faith.”
Slater’s whole piece is worth a read, as it’s one of the most accessible legal looks at what the Employee Free Choice Act does, what role each part of the legislation would play, and why it’s likely that the legislation as written is nowhere near the sort of bogey man Republicans and big business have portrayed it to be.