The recent suggestions that Senators may jettison card-check, or “majority sign up” (or whatever we’re supposed to call it these days) from the Employee Free Choice Act comes with word that it may be replaced by a mandate that elections be held within five or ten days of the date a petition is filed. Criticism of EFCA seemed immediately to shift to the interest arbitration provisions, but this notion of quick elections warrants further examination. We offer the following general observation, in no particular order:
- Imagine if the President of the United States had the power to just announce on any given day that there would be an election in five days and that the people would be bound by the results for the next four years. Citizens would be outraged because there would not be ample opportunity to learn about the candidates and examine their platforms. Under the reported EFCA compromise, a labor union would be able to choose the date on which the petition is filed after collecting signed authorization cards from just 30% of the workforce. In the words of Nathan Newman, Policy Director for Progressive States Network: “Union secretly collects cards, announces them and calls a snap election for five days later.” Up to 70% of the workforce would have to make a decision within five days whether to give a labor organization they may never even have heard of the right to become their exclusive workplace representative. The interest arbitration provisions of EFCA would likely forbid any decertification for at least two years.
- U.S. employment law typically encourages providing employees with information about their rights. Our friend Dan Schwartz at Connecticut Employment Law Blog has been reporting on the Equal Employment Opportunity Commission’s recent guidance on separation and severance agreements. In that guidance, the EEOC notes that the validity of a waiver of rights under anti-discrimination laws will turn on:
- whether [an agreement] was written in a manner that was clear and specific enough for the employee to understand based on his education and business experience;
- whether it was induced by fraud, duress, undue influence, or other improper conduct by the employer;
- whether the employee had enough time to read and think about the advantages and disadvantages of the agreement before signing it; [and]
- whether the employee consulted with an attorney or was encouraged or discouraged by the employer from doing so.
In fact, for a waiver of age discrimination claims to be valid, the employee must be given at least twenty-one days to consider the agreement (or at least forty-five days in the case of an exit incentive or other group termination program) and then must be given seven days within which to revoke the agreement after signing it. Does it really make sense to force an employee to decide whether to waive the right to self-representation within five days?
- While EFCA proponents would like the public to believe that employers create interminable delays in union elections, the truth is that in 2008, the National Labor Relations Board conducted initial elections in union representation elections in a median of thirty-eight days from the filing of the petition. 95.1% of all initial elections were conducted within fifty-six days of the filing of the petition. While there may be cases of abuse by some employers, we note that few governmental agencies operate with this level of efficiency. Current NLRB policy is to conduct elections within forty-two days of petition-filing. During that time period, the parties discuss, and litigate, if necessary, the scope of the eligible voting unit. This discussion period is important in order to avoid litigation. In 2008, 91.8% of all elections were conducted pursuant to election agreements reached without the need for litigation. In a five or ten day election cycle, all issues regarding the appropriate bargaining unit would have to be resolved after the election. This would likely increase the instances of litigation, as the party behind in the vote count would have no incentive to compromise. It would create uncertainty in the workforce for a considerable amount of time after an election. And it would be a tremendous waste of government resources because the agency would likely have to invalidate numerous elections conducted in inappropriate units.
Of course, the reported expedited election proposal is not really about giving workers the opportunity to make informed choices or to avoid litigation. It is, as Mr. Newman admits, about giving unions an opportunity to increase their membership though ambush and silencing opposing views.