Jottings By An Employer's Lawyer

Friday, March 13, 2009

What a Great Time to Be a Labor/Employment Lawyer!

All of us who work in the labor/employment law arena know that for most of the time our niche of the world is very important to those who are focused on it, but generally pretty much an unknown to the larger public. Well that hasn't changed, it's still pretty much an unknown, but with the introduction of the Employee Free Choice Act into Congress and the ensuing media blitz, we are certainly getting our day(s) in the spotlight.

The media coverage refreshes a lesson I first learned as a young lawyer about how news coverage works. I was involved in a well publicized trial in Laredo in 1980. At the time, even that small town had two daily newspapers. Both papers staked out positions on the trial and reported at length on each day's court room activities in lengthy front page stories.

Not too surprisingly given their viewpoints, what was reported in the two stories often sounded like very different trials. What was surprising was how neither even came close to accurately capturing what was actually happening. It was not really the reporters fault, it is is very hard for someone who is not an expert on a particular case, or a particular subject matter, to really appreciate the nuances of a situation. And almost by definition any trial, or any legal matter such as EFCA is a very nuanced subject matter.

The truth of that lesson has been repeated every time I have had a case that got news media attention and is now being re-enforced as I listen/read much of the reporting/commenting on EFCA.

Yesterday I was in Houston and as a channel flipper, caught an early morning segment on Fox News with an interview with a representative of Change to Win. On my drive back to Austin, I caught a conservative radio talk show,, which was devoted for the entire afternoon to EFCA. This morning on my drive in to work, it was an NPR story with another Change to Win advocate.

Unfortunately, much of the rhetoric on both sides was often not quite accurate and too quickly jumped to ad hominem attacks, which is never an encouraging signal that intellectual exchange is going to follow.

Although I would be shocked if the current level of discussion of EFCA will be sustained much beyond the current news cycle, clearly it is going to remain an important topic until is finally addressed by Congress. When that date will be is a moving target, but seems to be sliding further away rather than closer.

A few more random thoughts as we move ahead on this issue --
  • I think that the proponents of EFCA are making a mistake in not taking on a much bigger issue -- should our national labor policy continue to be that having employees represented by unions for the purpose of collective bargaining is the preferred and government encouraged means for employer/employee relations? I understand why proponents of EFCA want to accept that as a given; however, with most American's lack of familiarity with unions, understandable given the decades long decline of union membership, I think that is the underlying debate that is really going on, even if many of those opposing EFCA give lip service to their agreement. I understand why even conceding that this is an issue is problematic; but if I am right and there is truly not a consensus on this point, ignoring it as opposed to showing why it should be the agreed starting point, is not designed to lead to a good result.

  • I think the opponents of EFCA are making a mistake focusing so much on card check. How a union is formed is important, and my belief is that the secret ballot is far superior to card check. However, in my view the most radical change contained in EFCA is binding arbitration for the first contract. The current national policy, which as mentioned above, is that collective bargaining is the preferred way of organizing the workplace, also is founded on the principle that an employer while required to bargain in good faith, was never forced to concede or agree to any point. To "force" concessions, unions have the economic power to withhold their labor, strike. If EFCA is passed as introduced, for first contracts this would no longer be true. If agreement is not reached, a solution will be imposed, which will require an employer (and employees) to be bound for two years. It represents a total reversal of the current policy, and so far is getting relatively little attention. If that continues, what will happen is that a "compromise" will be reached that retains secret ballot elections (albeit it with major changes designed to make it easier for unions to organize) but keeping binding arbitration for first contract. That would mean that one of the underlying principles of our current system will have been changed, with little discussion or my guess, is little understanding that it is even happening.

  • Those who claim to have some specific knowledge in this area have a special duty to engage in discussions that are more than just the easy sound bites, so that if anyone really wants to get a more nuanced view, it is available. Obviously, I write with a viewpoint, but hopefully in the months ahead as I write on the subject, I will adhere to what I have recommended for others and not resort to sound bites nor ad hominem attacks. This is only the second time in my 30 + year career in this area that there has been a serious discussion on these issues. The first time in 1977, I was way too junior to understand what was at stake, much less contribute. My hope, this time, is that I can offer more to a meaningful debate.

Although for the first couple of years of this blog's life, there were only a handful of others focused on labor and employment law, there are now more than fifty. I think our community can bring a lot to the debate and I would encourage others to join in with their own viewpoints. I would particularly encourage comments to my thoughts, particularly those who might disagree with my viewpoints.

Update: 3.16.09 - Rick Bales at Workplace Prof Blog, was kind enough to link to this post, and his post has some interesting comments which I would suggest others check out. One by Professor Dennis Nolan of USC has heard other rumors about what might happen, and offers his own thoughts:

Fox's speculation about a compromise is the exact opposite of a rumor I heard, that unions would be willing to sacrifice the compulsory arbitration provisions in order to get card check through. Of the two possibilities, that one makes much more sense. Without card check, unions won't have any significant number of new first-contract disputes that might need arbitration. The fact that the sponsors haven't fleshed out the bill's arbitration provisions also suggests that they don't expect it to pass. If they did expect compulsory arbitration to be in the final law, they would surely have provided more guidance about arbitrators, procedures, and standards. Without any standards to control arbitral decisions, the law would be begging for a constitutional challenge.

I wonder, though, if both rumors could be wrong and if unions are willing to put the whole package to an up or down vote. The provisions are complementary --- arbitration is useless without new bargaining units, and new bargaining units wouldn't be able to get contracts out of anti-union employers without either a credible strike threat (unlikely in this economy) or compulsory arbitration.

Thanks to Professor Bales for calling these comments to my attention and to Professor Nolan for his thoughts.

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