How “radical” is the Employee Free Choice Act (EFCA)? EFCA proposes that employers must bargain with a union that has majority support as shown by authorization cards, even if there has not been a secret ballot election. See our prior entry describing EFCA.
Sen. Lamar Alexander (R-TN) said Tuesday, March 10, that EFCA is “the most radical piece of legislation before the Congress,” in a hearing before the Senate Health, Education, Labor and Pensions Committee, of which he is a member. Is that claim true?
The National Labor Relations Act, which requires employers to bargain in good faith with designated unions, was passed in 1935. Until 1972 – that is, for the first 37 years that the Act was in force – the National Labor Relations Board enforced by its own decisions a procedure very much like the one proposed in EFCA. If a union presented a “card majority,” the employer had no right to insist on an election. Unless the employer had objective reasons to doubt the union’s majority status – such as a simultaneous petition by a majority stating that they did not want a union – the employer was obligated to bargain with the designated. This doctrine was known as the “Joy Silk” doctrine after the case of the same name, although Joy Silk, 85 NLRB 1263 (1949) was not the first or only case that enforced this “no election” rule. It was the norm for most of the first four decades of the Act. In 1947, just before Joy Silk, Congress refused to amend the Act to require employers to bargain only with unions certified through the election process.
Board appointees are political, and in 1972, during the presidency of Richard Nixon, the Board changed this rule to state that an employer, with no basis for doubting that the union had achieved a majority of the employees’ support as demonstrated by cards, could simply refuse to bargain, and therefore force the union to seek an election. The Supreme Court upheld this rule in a 5-4 decision in a case known as Linden Lumber, 419 U.S. 301 (1974). Linden Lumber doesn’t actually require elections; it says that the NLRB can make a rule that requires elections. Presumably, the NLRB could also go back to the previous Joy Silk rule that no elections are required, which had also been upheld in the courts.
It has been 37 years since the Board’s change of direction in 1972, so for exactly half the time the NLRA has been law, elections were required, and for exactly half the time, they were not required. The change in 1972 occurred because the Board (which has only 5 members) decided a precedent-setting case which departed from the known practice up to that time—not because the law was changed.
Mitch McConnell (R-KY), Republican Senate Minority Leader, has said that if you want to "turn America into Europe” then "nothing will do it faster" than if EFCA is passed. We know this is wrong too: The NLRB followed the rule proposed by EFCA for 37 years. America was prosperous during that time. Unions were stronger and larger then, but so was the American middle-class and the economy, and throughout this period, real wages kept pace with productivity. After 37 years with elections being required, Unions are smaller and weaker, the middle class is under assault, and our generation is the first that will leave its children worse off than ourselves.
In our neighbor to the north, Canada, the rule is that unions must be recognized even without elections – like EFCA and the old Joy Silk rule, not the Linden Lumber rule in use in the USA today.
The mandatory arbitration provision in EFCA is new and different. It will require for the first time in American history that private employers submit to arbitration if they cannot agree to the terms of a contract. Even this provision of the law is not “radical.” The mediation provisions are not new. Mandatory mediation already exists in the railway and airline industries. In many states, public sector employees are not allowed to strike and contract arbitration is mandatory. These systems work well – public sector wages are not generally higher than private sector wages, and the use of arbitrators has not led to a bureaucracy or a crisis in municipalities generally. As in the public sector, no employer in the private sector will be forced to arbitrate a contract unless his employees have chosen a union and the parties have been unable to agree after both sides have negotiated in good faith.
In recent months we have seen CEOs from companies that the American taxpayer has had to bailout pay themselves huge bonuses. Not one of these CEOs will work without a contract guaranteeing his or her terms of employment. EFCA gives the ordinary worker the right to a contract too.
So, Lamar Alexander and Mitch McConnell are wrong: EFCA is not radical. The card-check rule in EFCA just restores the law to where it was in 1972. The card check rule worked for many years in the private sector; and it still works in Canada today. Even after EFCA, employees can still have the secret ballot if they want one. It is only the employer who cannot force the employees to have a secret ballot when they have decided they don’t want one. The contract arbitration provision gives every worker who wants a contract the chance to get one.
