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Weighing the Employee Free Choice Act

Publication Date: 
February 09, 2009
Los Angeles Times
Michael Hiltzig

Professor William B. Gould IV is quoted in the Los Angeles Times in an article about the Employee Free Choice Act (EFCA), which aims to amend the National Labor Relations Act:

The EFCA aims to create a new regulatory regime for union-organizing elections, oversight of which falls to the cataleptic National Labor Relations Board. The NLRB sometimes takes years to resolve complaints alleging employer intimidation of organizing workers -- at which point it often merely orders a new election, thus starting the dismal cycle all over again.

The bill would require the board to give such cases top priority. It would also mandate that, once a union is certified, an employer negotiate an initial contract within 120 days, after which a federal arbitrator could impose a deal. And it would dramatically raise the penalties for unfair labor practices by employers, such as intimidating workers or firing organizers, during a unionization campaign.


This all happens under the nose of a supine NLRB, which allows certification cases to drag on infinitely in what former NLRB Chairman William V. Gould, now a professor at Stanford Law School, calls "a ‘Bleak House’ nightmare." (The reference is to the Dickens masterpiece about a chancery case which lasts for, oh, 896 pages of narrative.)

And that's when the agency bothers to act. During the Clinton years, when Gould served, the board sought injunctions in labor-practice cases about 70 times a year. Under George W. Bush, that figure dropped to 17.

Yet in Gould's view, the card-check provision is the wrong approach. He may have a point. The problem with certification elections isn't that employees vote by secret ballot, but that the process is devoid of enforceable deadlines, leaving workers vulnerable to intimidation and delay. It isn't unusual for months to pass between the submission of signed cards and a vote, and even after that, challenges to the election result can go on for years.

"Employers know that by playing out the string and relying on the NLRB's lethargy they can abuse the process," he says. He contends that the better option is to mandate a secret ballot -- but require that it take place within five to 10 days of submission of the authorization cards. That would reduce employers' opportunity to coerce workers and pump them full of anti-union propaganda.

But he's very much in favor of hiking the penalties for unfair practices, calling that provision in EFCA an "unqualified positive contribution" to labor regulation.