Former NLRB Member responds to EFCA compromise discussion
Two interesting viewpoints on labor law reform appeared today in today’s online edition of Politico.
Will Marshall, President of the Progressive Policy Institute, wrote an article entitled “Setting the Stage for a ‘Grand Bargain’ on EFCA.” In it, Mr. Marshall, a centrist Democrat, suggested a “modified EFCA” that would address concerns raised by both labor and management. His proposals:
· Use majority sign-up to trigger an expedited election. This seems to be what the Senate moderates have in mind. Holding secret votes within, say, a month after the cards are counted would limit the time available to either side to strong-arm workers.
· In lieu of binding arbitration, authorize the NLRB to make workers whole when an employer fails to bargain in good faith. For example, the board could order employers to offer compensatory relief based on lost wages and benefits, in comparison with equivalent labor agreements.
· Guarantee unions fair access to workers. One way would be to limit the number of meetings employers can declare mandatory during an organizing campaign.
Mr. Marshall asserts his belief that these changes are necessary because:
[T]here is wide consensus that U.S. labor laws, framed in America’s industrial heyday, need to be modernized to fit the smaller, more fluid and more collaborative workplaces that now dominate the U.S. economic landscape.
Specifically, observers on all sides agree that the NLRB . . . takes far too long to reach decisions and that the penalties for ignoring its rulings are too weak.
The other view can be found in the comments following Mr. Marshall’s article. John Raudabaugh, who served as an NLRB Member from 1990-93 and is now a partner at Baker & McKenzie, wrote:
Labor's density has declined for many reasons including less commitment on organizing, failing to improve value-added services to "sell," and internal union disharmony. Refusing to acknowledge merit over lowest-common-denominator and fostering an entitlement culture is a non-starter. To reward failure with legislative imprimatur is absurd. However, if our elected representatives feel obligated to beltway centric labor: (1) any new penalty system must be applicable to labor too and for all violations of any kind at any time, (2) correct the wrongly decided Enmons loophole to the Hobbs Act, (3) re-introduce the TEAM Act to make lawful a collaborative, non-adversarial workplace, (4) provide hands-on free mediation assistance to first contract bargaining for unions and employers upon request, (5) merge the FMCS and the NLRB to provide seamless service, (6) reorganize representation case processing at the NLRB under a central intake, hearing, and decisional process at headquarters utilizing videoconferencing and related technologies removing regional office involvement, (7) make NLRB appointments one term only for seven years or consider creating a specialized Article III court to handle all workplace related matters including controversies arising under the NLRA, OSHA, and EEO related statutes. . . hold hearings and conduct studies by meeting with senior agency staffers individually to solicit their ideas.
Mr. Raudabaugh expressed many of these ideas in Senate testimony on April 2, 2008.
