Jottings By An Employer's Lawyer

Tuesday, March 17, 2009

Others Agree -- It's the Arbitration That's Important (But Can't We Get the Facts Right On the Card Check Portion?)

Politico has an article by Jeanne Cummings today cautioning business about taking its initial surge in raising issues about EFCA too much to heart, Premature partying over 'card check'?

The money quote:
The suits seem nearly giddy over their apparent first-round public relations win against Big Labor over legislation expanding union organizing powers.
Instead as if channeling my earlier post, Cummings points out the real problem for business may well be the binding arbitration provision:

Under the legislation, if a contract isn’t reached within 120 days, the parties would be subjected to binding arbitration in which a federally appointed mediator would hammer out a two-year contract that both sides must accept.

For all the hoopla and advertising by businesses about protecting workers’ secret ballots, it’s this provision that worries many of them the most.

Their fear: a federal mediator with little knowledge of their business having the power to impose costly wage and benefit rules for years.

So far, though, business has only just begun to focus its public campaign on that section of the bill, and that delay could become a critical opening for labor.

Compromises are already floating on Capitol Hill — most of them focused on reworking the organizing provision, not the arbitration requirement.

Rather than either of us channeling the other, I think we were both just reporting on what anyone who is knowledgeable about the bill knows.

What I don't get is Cummings', or numerous other journalists, willingness to repeat a statement about the card check aspect of the bill that I think is just inaccurate. Here is what she says:

The legislation doesn’t prohibit the traditional process of elections and secret ballots. If a majority of workers want to proceed that way, they still could.
I know something about this, I have read the Act, and I think that statement is just wrong. I would appreciate Cummings, or anyone else for that mattter, explaining to me why it is a true statement.

As resource material, here is the complete text of S. 560 EFCA as introduced in the Senate.

This is the card check section, Streamlining Union Certification:

Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).(emphasis added)

Clearly, if a majority sign authorization cards, EFCA as now drafted says -- NO ELECTION.

Now, if Cummings' argument is the nuanced one that an election will be held if more than 30, but less than 50% have signed authorization cards at the time the petition is filed, I would agree that would be a true statement, but although as set out in this post, likely still misleading.

I actually have written Cummings at Politico asking her to explain why her statement in her article is an accurate statement and hopefully she or others will respond.

I think the debate about EFCA is a very important, and clearly one on which people of good faith will have different view points, but it would be nice if we could at least agree on what the law as drafted provides when it is straightforward and not open to interpretation (at least as I read it.) And anyone (certainly including me) writing on this issue should get the basic facts straight.

On a slightly different (and certainly a less ranting) note, for those interested in the horse race aspects, check out this in depth review of where 23 key Senators might stand on not only supporting EFCA itself, but more importantly on the issue which will really determine its fate, whether to vote to invoke cloture. See EFCA: Counting the votes at Campaign Diaries.

Update: Ivan Osorio at was ahead of me on calling Cummings out on the above paragraph. See, With news coverage like this ...

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I think you're making a mistake.

She doesn't say if a majority have signed cards there can still be a secret ballot. Just says any majority.

I see what you're saying, but I think you're adding on that clause and it's not there.

And if you oppose EFCA, you should just ignore this card check stuff like you suggest above.
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