On July 22, 2009, Rep. Zoe Lofgren (D-CA) entered an extension of remarks into the Congressional Record in support of the Employee Free Choice Act.  Rep. Lofgren submitted a July 20, 2009 speech by former NLRB Chairman William B. Gould IV to the 58th Annual Conference of the Association of Labor Relations Agencies.

Chairman Gould served on the NLRB during the Clinton administration, and is a Stanford University law professor emeritus. He also has long been a critic of EFCA as currently drafted, while remaining an outspoken voice in favor of significant labor law reform. His comments earlier this week continue to reflect that position:

This significant legislative proposal warrants dispassionate examination in an arena which has been too frequently divided and polarized. My sense is that the bill even with proper amendments—and I am quite confident that if it is enacted it will be amended—will have a considerable impact on the workplace. EFCA and labor law reform contain some of the assumptions that I have held for more than four decades, i.e., that the Act is plagued with lethargic enforcement, creaky and convoluted administrative procedures and ineffective remedies, that it is not working well and that, as a result, some employees who wish to join unions are unable to do so.

As talk of “compromise” or alternatives emanate from Washington, Chairman Gould’s is likely to become a more important voice — should EFCA’s proponents have any serious interest in truly intelligent and “dispassionate examination” of the issues involved. Chairman Gould’s prior criticisms of EFCA have consistently focused on Sections 2 and 3 — the card-check and interest arbitration provisions.  But regarding Section 4, which would increase penalties against employers during organizing efforts and negotiations, Chairman Gould said:

I think that the Employee Free Choice Act is right on the mark in establishing a treble damage award for back pay. For too long, an award of back pay minus interim earnings has been regarded by everyone involved on all sides as a license fee for employer misconduct because back pay is cheaper than a union contract.

 

EFCA also provides for fines up to $20,000 for each employer violation as well as new contempt sanctions. And again, I think that the new law has it right in expanding and making more effective the Board’s injunctive authority for employer unfair labor practices—in much the same manner that the statute has established them for union unfair labor practices since the Taft-Hartley amendments.

Regarding the remainder of the bill, however, Chairman Gould still believes “there is much more room for debate.” Reiterating that he finds card-check an inferior method of selection, he endorses the current thoughts being circulated regarding quicker elections:

The answer here is to both expedite elections—to require that they be held within a couple of weeks of the union’s petition, as is done in the provinces of Ontario and British Columbia—and to reverse Supreme Court precedent excluding non-employee union organizers from company premises so that they can carry their side of the message to employees more effectively in the run-up to the ballot itself.

Likewise, Chairman Gould suggests that mandatory interest arbitration as a default proposition for all new bargaining relationships is over-reaching:

However, EFCA-sponsored interest arbitration, in contrast to the grievance or rights variety, is relatively untested in the private sector in the United States. In Canada, which has first contract arbitration in most provinces, the process is rare and used sparingly (except in Manitoba where it is automatic after a specific time period). The conundrum is that the potential for a mechanism like this must be available to rescue bargaining which is at a stall, and yet its mere availability can undermine the collective bargaining process itself which is furthered by the Act.

 

The proper approach here, it seems to me, is to provide that the mediator—perhaps in consultation with the NLRB itself—should certify after extensive mediatory efforts that collective bargaining is either at an impasse or dysfunctional. As it presently stands, EFCA simply allows for arbitration to be invoked after three months of collective bargaining and subsequent mediation. Not only is this period of time too abbreviated, but by spelling out a specific period of time after which arbitration is automatic, it encourages the parties to maneuver in anticipation of arbitration in a way which can erode the voluntary collective bargaining process. Moreover, this approach fails to take into account the fact that both sides are frequently learning for the first time as they put together their very first collective bargaining agreement.

 

Arbitration must be used sparingly, although it should remain available in the final analysis so as to shore up a relationship which might otherwise disappear.

Chairman Gould concluded his presentation with a number of additional reform recommendations — encouraging NLRB rule-making; unfreezing jurisdictional guidelines; allowing expansion of state labor law; eliminating batching of NLRB appointees; and reducing the size of the Board, while extending terms and barring re-appointment.   A thorough read of this piece by all serious management representatives, advocates or attorneys is a must.