Jottings By An Employer's Lawyer

Monday, March 23, 2009

EFCA - Six Principles

While I was in Las Vegas for the LEAP Conference and watching the precarious status of my brackets (thanks a lot Wake Forest!), I was monitoring EFCA developments, but not posting. Fortunately, that saved me from posting "breaking news" on a new proposal by the CSW (Costco, Starbucks and Whole Foods, sometimes known as the Seattle to Austin connection) about their 70/50/30 proposal and the reaction to that as traitorous to the cause by many business groups who are active in the fight against EFCA.

Instead, as with most things about this proposed legislation, the story was more nuanced (or at least that is the latest spin). CSW are now identified as the founding members of a new ad hoc group, the “Committee for a Level Playing Field for Union Elections” and have put forth a proposal outlining certain principles that it thinks should guide EFCA. The spokesperson is Lanny Davis, late of the Clinton (Hillary) campaign and before that the Clinton Administration, and now a partner at Orrick, Herrington.

The Statement of Principles of Reform "Third Way" Legislation are:
(1) Secret Ballot. Guarantee the right of management and unions to require a secret ballot under all circumstances.

(2) Certification and Decertification Treated Equally. Permit management to initiate a decertification campaign through a secret ballot election just as employees and unions are presently able to initiate certification and decertification campaigns.

(3) Date Certain for Elections. Guarantee a fixed time period for the secret-ballot election—i.e., do not permit delays of an established day for a secret ballot to certify or decertify a union.

(4) Equal Access to Employees for Campaign Purposes. Level playing field for unions and management to access employees during non-working hours during the campaign period, e.g., permitting each to make presentations to employees at a neutral location concerning the issue of whether to form a union.

(5) Expedited Enforcement and Stricter Penalties. Expedited enforcement for serious and pervasive violations of law by labor and management and stricter penalties for serious and pervasive violations (e.g., unlawful discharges), including the penalty of mandatory injunctions when appropriate.

(6) Preserve Private Collective Bargaining. No mandatory arbitration that dictates contract terms, but stricter penalties and expedited enforcement for violations of good faith bargaining rules, including an expedited timetable to begin bargaining after union certification.
So far, the proposal has been met with a resounding "no" by both organized labor and the organized business opposition.

Still, Davis is quoted in the EarthTimes reprint (which seems the appropriate cite for the CSW coalition) of the Orrick Herrington press release as saying that he was met with support from the 20+ Senators he met with about the new principles.

Clearly this is going to be a difficult vote for the Senators and they are looking for ways out.

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