Editorial
Front Page - Friday, September 25, 2009
EFCA a cause for concern, say labor relations lawyers
David Laprad
Joseph McCoin, labor and employment partner at Miller & Martin, is willing to let the unions speak for themselves for just a moment, and then he has a few things he’d like to say.
“We are writing to update you on the negotiations currently taking place with the union covering the IBT’s building workforce,” McCoin reads from a letter James P. Hoffa, general president of the International Brotherhood of Teamsters, writes in a letter dated July 29, 2009, to an unnamed person in the organization. “Unfortunately, the negotiations are not going well.”
McCoin points out how the letter uses the phrase “per capita revenues” when referring to the IBT’s unionized workers and the impact of the down economy on the organization. To him and fellow labor and employment attorney Larry Bridgesmith, it’s another indication that unions are more focused on self-preservation than attending to the needs of their members.
Hoffa’s memorandum, however, was not what brought these two lawyers together recently to write an op-ed piece about organized labor. Rather, they wanted to express their desire to see the federal Employee Free Choice Act, which Congress is deliberating, brought to its knees.
“It’s a hot topic based on the consequences of the last federal election cycle, during which organized labor made a concentrated effort to achieve certain results,” says McCoin. “And now, for the first time in a long time, there’s a good chance we’ll see major reforms to federal labor law.”
Very little has happened in the realm of labor law since the passage of the Landrum-Griffin Act in 1959, and according to McCoin and Bridgesmith, nothing needs to happen, as they say the current system is working well. However, the unions are losing members, Bridgesmith says, and they’re trying to plug the hole by pressuring Capitol Hill to pass a new law wholly favorable to union interests.
“I have seen numbers that suggest the unions spent as much as $300 million on last year’s campaign,” Bridgesmith says. “It was a make or break moment for them because of their historical decline. And they were successful in having their voices elected, not just at the presidential level but also throughout the senatorial ranks.”
McCoin and Bridgesmith say this is a cause for concern because of four changes EFCA, proposed prior to the last election cycle, would bring into effect. The first would take away an employee’s right to a secret ballot when voting whether or not he wants a union to represent him in the workplace, says McCoin.
“Throughout American labor history, you have this notion that employees get to make that important decision in the privacy of a ballot booth, where no one can tell the employer or union how the person voted. I think the outrage over taking away something that fundamental is easy to grasp.”
EFCA would require an employee to sign a card saying he’s giving his rights to be represented over to the union.
“That troubles us, because when cards are used, no one knows the circumstances under which they were signed — unless employees complain about being forced to sign, threatened or promised something no one delivered,” Bridgesmith says. “Those kinds of things are inappropriate when someone is making a choice of that magnitude, but case law is replete with that kind of coercion.”
McCoin and Bridgesmith are also concerned about language they say would allow a panel of government arbitrators to impose terms and conditions on employees, employers and unions during first contract negotiations. The problem, says McCoin, is that government arbitrators have a tendency to “split the baby.”
“They try to give everybody something they’ll like,” he says. “For instance, if you discharged one of your employees for violating a rule, they might let the employee return but without any back pay for the time they missed.”
“There’s a reason that occurs,” Bridgesmith says. “Like judges, who are either elected and appointed, arbitrators have the power to interpret disputes, but unlike judges, their livelihood comes from their next appointment. If an arbitrator is biased in favor of either the union or the employer, who alone chooses the arbitrator, then that arbitrator will no longer be chosen. He’ll put himself out of business.”
Worse, says Bridgesmith, is that EFCA would give authority to individuals who, through no fault of their own, could never have enough experience with a particular industry to understand the implications of their decisions.
“No one is even suggesting this should be subject to revision or review, which is scary,” he says.
EFCA will also increase fines and penalties for unfair labor practices for employers, but not unions, which McCoin and Bridgesmith say is untenable. “The idea is that the National Labor Relations Act doesn’t do enough to deter certain kinds of conduct. But EFCA focuses solely on employers; there’s no recognition that the other side engages in unfair labor practices,” says Bridgesmith.
“It’s all well and good to say we need to increase penalties and enforcement, but shouldn’t it be applied evenly?”
Finally, McCoin and Bridgesmith are concerned about how EFCA would disrupt the flow of the U.S. economy by making secondary boycotts and hot cargo arrangements more difficult to stop. For example, the law currently compels the National Labor Relations Board to prevent any union from ordering its members to refuse to handle goods shipped from an employer with which the organization has a dispute (secondary boycotts). This “reduces interruptions in commerce by minimizing the spill-over effect of disputes between an employer and unions to innocent employers and their unions,” McCoin and Bridgesmith wrote in their op-ed piece.
“The point of federal labor law is to protect federal commerce from disputes between employees and employers, and unions and employers,” McCoin says. “We’re trying to keep the economy going no matter what the problems at a particular workplace might be.”
However, McCoin says EFCA would turn federal law on its head by making it the NLRB’s priority to seek injunctive relief in certain instances of alleged employer misconduct.
“If the economy is this country’s engine, this proposed change would be like refusing to use motor oil,” wrote McCoin and Bridgesmith. “Right now, our nation is struggling to promote commerce. ... Billions upon billions of taxpayer dollars have already been spent to that end. ... Common sense dictates maintaining the policy of reducing interruptions in commerce caused by industrial strife.”
McCoin says he’d like to see EFCA defeated in its entirety. “And if there ever is to be reform, it would be good for there to be a lot of open debate on the purpose of federal law,” he says. “We should ensure all of the people who have a stake in those matters are heard.
“The current system has worked well. The problem is that the unions are losing members, and to stop losing members, they’re looking to correct their problems, which has led to potential legislation that won’t help the whole in any way, shape or form.”
While McCoin is hopeful EFCA will be defeated, Bridgesmith is not as optimistic.
“The president has said he’s not going to take up labor reform until his health care reforms are resolved,” he says, “and we’ve seen the unions line up solidly behind everything the president says about health care reform. So who knows what kind of deals will be struck in order to get that initiative through?”
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