DOCSLIB.ORG

The Employee Free Choice Act – What’S an Employer to Do?

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Employee Free Choice Act – What’S an Employer to Do? Reprinted with permission from the New York State Bar Association Journal, September 2009, Vol. 81, No. 7, published by the New York State Bar Association, One Elk Street, Albany, New York 12207. POINT OF VIEW BY EVE I. KLEIN, BRUCE J. KASTEN AND JOANNA R. VARON EVE I. KLEIN ([email protected]) is a partner at Duane Morris LLP in New York City practic- ing in the area of employment law, labor relations and litigation. She earned her law degree from Cornell Law School and her undergraduate degree, with distinction, from Cornell University School of Industrial and Labor Relations. BRUCE J. KASTEN ([email protected]) is a partner at Duane Morris LLP in Philadelphia, practicing in the areas of employment law, labor relations and employment litigation. He is a graduate of the Columbus School of Law of The Catholic University of America and earned his undergraduate degree from the University of Scranton. JOANNA R. VARON ([email protected]) is an associate at Duane Morris LLP in New York City. She received her law degree from the Benjamin N. Cardozo School of Law, where she was senior articles editor of the Cardozo Arts and Entertainment Law Journal. She received her undergraduate degree, with high honors, from Rutgers University. The Employee Free Choice Act – What’s an Employer to Do? he labor movement’s top legisla- any corresponding increase in penal- cess; (3) potential revisions to EFCA; tive priority, the Employee Free ties for union misconduct. and (4) steps employers can take to TChoice Act (EFCA), proposes The chances for passage of at least be ready for the changes the EFCA is the most sweeping set of amendments some version of the EFCA this year expected to have on the organizing to the National Labor Relations Act have improved dramatically from last and collective bargaining processes. (NLRA) since passage of the Taft- year, when it easily passed the House Hartley amendments in 1947 and, pos- but was blocked by a threatened fili- No Secret-Ballot Election sibly, in the NLRA’s 75-year history. If buster in the Senate. The election of The Union Representation Process passed, EFCA will dramatically alter President Barack Obama, who cospon- Under Current NLRA Law the landscape of labor–management sored the EFCA last year, as well as The key provision of the EFCA is its relations in favor of unions seeking to Democratic gains in the Senate last virtual elimination of an employee’s organize nonunion employers. fall and Al Franken’s (D-Minn.) recent long-standing right to a secret-ballot The EFCA proposes significant victory in Minnesota – which gave election to vote for or against union departures from three long-standing Democrats control over 60 Senate seats, representation. Under current law, the NLRA principles. First, the EFCA will the number needed to overcome any representation process begins with a either virtually eliminate secret-bal- Republican filibuster – increased the demand for recognition by the union. lot elections, the primary method by chances of the EFCA’s passage in some If the employer declines to recognize which employees express their prefer- form in the short term. In fact, reports the union voluntarily, the union may ence on the issue of unionization, and have indicated that Senate Democrats file a representation petition with the allow labor organizations to unionize have made a deal that will result in National Labor Relations Board (NLRB workforces simply by directly solicit- a Senate vote this fall. Supporters of or the “Board”) regional office where ing and obtaining signatures from a the deal – spearheaded by Senators the bargaining unit is located. The peti- majority of the employees in an appro- Sherrod Brown (D-Ohio), Tom Carper tion must be supported by a “showing priate bargaining unit, or condense the (D-Del.), Mark Pryor (D-Ark.), Charles of interest,” which is typically satisfied period from a union’s filing of a repre- Schumer (D-N.Y.) and Arlen Specter by signed “authorization cards,” dated sentation petition to the election to five (D-Pa.) – hope it overcomes the reser- no more than one year prior to the peti- to 10 days. Second, the EFCA will force vations of moderate Democrats who tion date, from at least 30% of employ- employers into “interest arbitration” have expressed opposition to the bill as ees in an appropriate bargaining unit. for the first collective bargaining agree- it is presently drafted. As a practical matter, most unions will ment if the parties fail to negotiate a This article examines: (1) the rep- not file a representation petition until mutually acceptable contract within resentation and collective bargaining they have obtained signed authoriza- 120 days. Third, the EFCA will funda- process under the NLRA; (2) how the tion cards from at least a supermajority mentally alter the remedial nature of provisions of the EFCA, as presently (60% to 70% or more) of the employees the NLRA by imposing treble-back- drafted, will make it easier for labor in the proposed unit. Notwithstanding pay awards and civil damages against organizations to organize nonunion a union’s demand for recognition employers for improper conduct dur- workforces and will fundamentally based upon its claim to the employer ing a union organizing drive, without change the good-faith bargaining pro- that it has a majority, as evidenced 38 | September 2009 | NYSBA Journal POINT OF VIEW by the signed authorization cards, tion or fear of reprisal. Employees who ee free choice, significantly, the EFCA an employer has an absolute right to have signed authorization cards for applies a different set of rules regard- reject a union’s demand for recogni- the union nevertheless have a right to ing decertification elections. The EFCA tion. For example, the employer may vote “no” in the election if they have explicitly restricts its application to cir- not be convinced that a majority of its changed their mind, or had signed in cumstances where “no other individ- employees have knowingly selected to order to have the opportunity to learn ual or labor organization is currently be represented. If an employer declines what the union was about. Only if a certified or recognized as the exclusive to voluntarily recognize the union, the union receives a majority of votes cast representative of any of the employees union files an election petition with in an election will the Board issue a in the unit.”4 the NLRB, and the Board schedules a “Certification of Representative.” Both the Board and the courts “have federally supervised secret-ballot elec- long recognized that the freedom of tion during which employees have an Representation Election Procedure choice guaranteed employees by opportunity to vote on the question of Under the EFCA Section 7 is better realized by a secret representation. The EFCA eviscerates the time-test- election than a card check.”5 Note, The period of time between the ed and democratic procedural safe- however, there is no mechanism for filing of the petition and the election guards of the secret-ballot election. the employees to request an election, (on average six to seven weeks) is Specifically, the EFCA amends Section leaving the decision entirely up to the “campaign period.” During this 9(c) of the NLRA to provide that when the union. A union with cards from a time, the employer and the union have a petition is filed by an individual or majority of employees is unlikely to an opportunity to advise employees labor organization claiming to repre- request an election when it can “win” about the practical implications of sent a majority of the employees in a and be certified on the basis of the union representation by distributing unit appropriate for the purposes of cards and avoid a challenge. Thus literature and holding information- collective bargaining, the EFCA’s proposed sole reliance on al meetings. Employees discuss the [i]f the Board finds that a majority authorization cards can pose signifi- issues, raise questions, and request of the employees . has signed cant dangers for the employer. information and answers to their ques- valid authorizations designating First, the legislation is devoid of any tions from both their employer and the individual or labor organiza- safeguards to ensure that a union will the union. With unionization of the tion specified in the petition as not gain representative status through private sector currently at an all-time their bargaining representative and coercive tactics. Union representa- low of 7.6%, this campaign period that no other individual or labor tives and employees fervently advo- has become an increasingly important organization is currently certified cating unionization have historically time for employers to answer ques- or recognized as the exclusive rep- employed a variety of improper tactics tions from employees who, in large resentative of any of the employees in connection with solicitation of autho- part, have limited exposure to unions, in the unit, the Board shall not rization cards, including peer pressure, little experience with union represen- direct an election but shall certify misrepresentation, harassment and tation or the election and bargaining the individual or labor organiza- intimidation. It is not uncommon for process, and little knowledge of their tion as the representative described union representatives to unlawfully legal rights in the face of organizing in subsection (a).1 promise that union initiation fees will efforts. The Board closely regulates In other words, the Board will issue be waived only for employees who the campaign process and the parties’ a Certification of Representative based sign authorization cards or to threat- conduct by imposing content and time solely on authorization cards signed by en that employees who do not sign restrictions on electioneering activity a simple majority of the employees in an cards will be terminated if the union and by providing a forum for challeng- appropriate unit – with no election and is certified as the employees’ exclu- es to improper or coercive campaign no campaign period for the employer sive bargaining representative.
Load more

Recommended publications
  • 6 What's Wrong with the Employee Free Choice Act?
    6 What’s Wrong with the Employee Free Choice Act? Richard A. Epstein he first one hundred days of the Obama administration have been marked by its determination to pass the revolu- T tionary Employee Free Choice Act (EFCA), which was introduced in Congress on March 10, 2009. As of this writing, it looks as though the bill will not pass this year, given the unanimous Republican opposition to it in the Senate. But the issue is likely to be revived again during the Obama presidency, as it has been before, so it is important to examine its provisions because it raises important issues of principle. In addition, it has gathered an impressive level of political and intellectual support. In particular, the EFCA has received the endorsement of the Democratic National Convention Platform Committee of prominent economists, under the aegis of the Economic Policy Institute, and of President Obama and Vice President Biden. In a recent congressional hearing before the 110th Congress on February 8, the EFCA was defended as the means to return to the management-labor balance under the National Labor Relations Act of 1935 (the NLRA, in its original form is commonly referred to as the Wagner Act), said to be the surest way to revive the fortunes of a shrinking middle class. The reality, however, is otherwise. The EFCA would hamper the efficiency of labor markets in ways that make the road to economic 89 90 REACTING TO THE SPENDING SPREE recovery far steeper than necessary. Generally, it will severely hurt the very persons whom it intends to help.
    [Show full text]
  • Senate Democrats Progress on EFCA Compromise by Jay P
    Senate Democrats Progress on EFCA Compromise by Jay P. Krupin and Steven Swirsky July 2009 The past several days have brought potentially significant developments with respect to Senate Democrats’ efforts to enact labor law reform and bring the Employee Free Choice Act to a vote on the Senate floor. Reports have circulated that a consensus has begun to emerge among Senate Democrats for a bill that would remove EFCA’s controversial provisions eliminating secret ballot elections where a union has obtained signatures from more than 50 percent of the employees in the proposed bargaining unit, and instead would provide for significantly faster NLRB-conducted elections, within five to ten days of the filing of a representation petition. The bill would also provide for greater access to employees and to employer property during the campaign period. Presently, NLRB-conducted elections are typically held an average of 45 days after the union files a petition. Along with faster elections, the reported compromise would include increased access by unions to employer premises to campaign among employees, as well as increased restrictions on employer campaign rights. EFCA’s other most controversial component, compulsory binding arbitration of the economic and other terms of initial collective bargaining agreements where the parties do not quickly reach agreement, is reported to remain a part of the compromise bill. While the Democrats reached 60 votes in the Senate when Arlen Specter of Pennsylvania switched his party affiliation from Republican to Democrat and Al Franken was finally declared the victor over Norm Coleman in Minnesota, the fact is that there remain a substantial block of Democratic senators who have expressed doubt about EFCA’s card check language and who have indicated that they are not prepared to support a bill that would eliminate secret ballot elections.
    [Show full text]
  • The Employee Free Choice Act: the Biggest Change in Labor Law in 60 Years by Robert Quinn and John Leschak
    LABOR LAW REGIONAL LABOR REVIEW, Fall 2009 The Employee Free Choice Act: The Biggest Change in Labor Law in 60 Years by Robert Quinn and John Leschak One of the most contentious proposals of the 2008 Presidential campaign and of the current Congressional season in Washington is the Employee Free Choice Act (EFCA). Supported by President Obama and opposed by Senator John McCain and most other Republicans, EFCA would be the most significant change to federal labor law in over sixty years. First, EFCA would allow the National Labor Relations Board (“NLRB”) to certify a union without an election if a majority of workers voluntarily sign cards authorizing a union to represent them (this provision is also known as “card check”). Second, EFCA would impose new penalties on employers who violate workers’ rights during initial organizing campaigns. And third, EFCA would permit bargaining disputes between an employer and union to be decided by arbitration during first-time contract negotiations. However, several powerful groups are opposed to any change. The U.S. Chamber of Commerce has launched a vociferous campaign against EFCA’s “Card Check” provision, which they claim will lead to intimidation and coercion in the workplace.1 Congressional Republicans have also been outspoken opponents of card check. Last February, Republican Senators Jim DeMint (S.C.) and Mike Enzi (Wyo.) introduced the Secret Ballot Protection Act, S. 478. This bill would make it illegal for an employer to voluntarily recognize a union through card check and would require NLRB elections. While many are opposed to EFCA, it cannot be denied that reform is needed.
    [Show full text]
  • Nomination Hearing for Deputy Secretary of Labor and Members of the National Labor Relations Board
    S. HRG. 115–374 NOMINATION HEARING FOR DEPUTY SECRETARY OF LABOR AND MEMBERS OF THE NATIONAL LABOR RELATIONS BOARD HEARING OF THE COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS UNITED STATES SENATE ONE HUNDRED FIFTEENTH CONGRESS FIRST SESSION ON NOMINATION FOR DEPUTY SECRETARY OF LABOR AND MEMBERS OF THE NATIONAL LABOR RELATIONS BOARD JULY 13, 2017 Printed for the use of the Committee on Health, Education, Labor, and Pensions ( Available via the World Wide Web: http://www.govinfo.gov U.S. GOVERNMENT PUBLISHING OFFICE 26–334 PDF WASHINGTON : 2018 VerDate Nov 24 2008 13:04 Nov 19, 2018 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\DOCS\26334.TXT CAROL HELPN-004 with DISTILLER COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS LAMAR ALEXANDER, Tennessee, Chairman MICHAEL B. ENZI, Wyoming PATTY MURRAY, Washington RICHARD BURR, North Carolina BERNARD SANDERS (I), Vermont JOHNNY ISAKSON, Georgia ROBERT P. CASEY, JR., Pennsylvania RAND PAUL, Kentucky AL FRANKEN, Minnesota SUSAN M. COLLINS, Maine MICHAEL F. BENNET, Colorado BILL CASSIDY, M.D., Louisiana SHELDON WHITEHOUSE, Rhode Island TODD YOUNG, Indiana TAMMY BALDWIN, Wisconsin ORRIN G. HATCH, Utah CHRISTOPHER S. MURPHY, Connecticut PAT ROBERTS, Kansas ELIZABETH WARREN, Massachusetts LISA MURKOWSKI, Alaska TIM KAINE, Virginia TIM SCOTT, South Carolina MAGGIE HASSAN, New Hampshire DAVID P. CLEARY, Republican Staff Director LINDSEY WARD SEIDMAN, Republican Deputy Staff Director EVAN SCHATZ, Minority Staff Director JOHN RIGHTER, Minority Deputy Staff Director (II) VerDate Nov 24 2008 13:04 Nov 19, 2018 Jkt 000000 PO 00000 Frm 00002 Fmt 0486 Sfmt 0486 S:\DOCS\26334.TXT CAROL HELPN-004 with DISTILLER CONTENTS STATEMENTS THURSDAY, JULY 13, 2017 Page COMMITTEE MEMBERS Alexander, Hon.
    [Show full text]
  • A Report on the Litigation Lobby
    CENTER FOR LEGAL POLICY AT THE MANHATTAN INSTITUTE C L P STREET NW A REPORT ON THE LITIGATION LOBBY 2010 A Message from the Director merica’s litigation-friendly legal system continues to im- law is, for the most part, crafted by state judges rather than en- A pose a heavy burden on our economy. The annual direct acted by state legislatures, these efforts have centered on ensuring cost of American tort litigation—excluding much securities liti- a friendly judiciary, whether appointed or elected. gation, punitive damages, and the multibillion-dollar settlement With business groups now fighting back against Trial Lawyers, reached between the tobacco companies and the states in 1998— Inc.’s longtime grip on state judiciaries, the litigation lobby has exceeds $250 billion, almost 2 percent of gross domestic prod- turned its attention to state legislatures, where it is not only block- uct.1 The indirect costs of excessive litigiousness (for example, the ing tort reforms but working to expand its portfolio of litigation unnecessary tests and procedures characterizing the practice of opportunities. Among other things, state legislators are authoriz- “defensive” medicine, or the loss of the fruits of research never ing new kinds of lawsuits, raising damage caps, and giving private undertaken on account of the risk of abusive lawsuits) are prob- lawyers authority to sue on behalf of the state. ably much greater than the direct costs themselves.2 Of course, the growth in federal regulation and law has made Of course, tort litigation does do some good, and it does deter it necessary for Trial Lawyers, Inc.
    [Show full text]
  • Employee Free Choice Act What It Means for You
    JUNE 2009 54224_P01_32_x2.indd 1 6/21/09 11:00:58 PM President’s Page Employee Free Choice Act What It Means For You uch that is written on the front pages of tively—free from coercion, intimidation, and retali- Mnewspapers all across America on the Em- ation, exactly what is needed to rebuild the middle ployee Free Choice Act (EFCA) has been about class. We know the erosion of the middle class fol- the battle lines drawn by Big Business and La- lows in the footprints of the steady decline of work- bor on this issue. It is easy to get caught up in ers’ rights over the past several decades. Below are the politics of it all, but the American public de- some of the reasons the Act is so important, and serves an answer to the question, “Is this good why the Iron Workers and the building trades have for America right now?” The U.S. House of Rep- supported passage of the EFCA in Congress: resentatives passed the EFCA on March 1, 2007 When workers in a non-union workplace at- by a 241-185 majority. However, though a ma- tempt to form support for a union, they are of- jority of the Senate supported the EFCA, a Re- ten times harassed and intimidated; 25 percent publican fi libuster blocked it. Published reports of companies unlawfully fi re pro-union workers. state approximately 60 million unrepresented The current laws against such corporate mis- Americans would join a union if given a chance. conduct are so weak companies often treat them The U.S.
    [Show full text]
  • “Are Unions Dead?” by Kenneth R
    NEW JERSEY COALITION OF AUTOMOTIVE RETAILERS “Are Unions Dead?” By Kenneth R. Gilberg, Esq. is introduced they are also attempting to gain the necessary votes to override an Much has been written in the news of late about the de- anticipated veto from President Bush. clining membership of labor unions in the United States. Employee Free Choice Act Unions and other pro labor organizations had hoped that Unions have already stepped up their ef- the Employee Free Choice Act (“EFCA”) recently passed by forts to increase union membership, but if the U.S. House of Representatives with a 241 to 185 majority the EFCA had passed it would have made union organizing much easier. Under the would also be passed by the Senate. EFCA, instead of a National Labor Rela- tions Board (NLRB) supervised, secret ballot election, employers would have to recognize a union when a majority of the t missed passage by only 9 votes. Senator Edward M. Kennedy (D-Mass) had origi- company’s employees in a representative nally proposed such legislation in 2003 and again in 2005. While the Employee Free IChoice Act previously did not have much momentum or attention, it does now. Not ■ are unions dead? only are the supporters of the EFCA expecting to gain majority vote the next time it ⎥ continued on page 32 July/August 2007 www.njcar.org 30 NEW JERSEY COALITION OF AUTOMOTIVE RETAILERS ■ are unions dead? ⎥ continued from page 30 What Can You Do Now? Write to your Congressperson and support management trade unit signed union authorization cards. If a union was certified organizations.
    [Show full text]
  • ILWU Solidarity for Dutch Dockers
    Published by the International Longshore and Warehouse Union DISPATCHER www.ilwu.org Vol 67, No 2 • February 2009 THE INSIDE NEWS LETTERS TO DISPATCHER 2 Rite Aid workers and the Employee Free Choice Act 3 TransAfrica celebrates the fight for justice 4 LeRoy King at Obama inauguration 5 MEMBERS SPEAK OUT 5 TRANSITIONS 6 Remembering Ah Quon 7 Tragic Vancouver incident 7 ILWU BOOKS & VIDEO 8 Coast solidarity: Committeemen Ray Ortiz, Jr., (R) and Leal Sundet (L) attended the Dutch docker rally on Jan 12th. “The Coast stands 100% Niek Stam, General Secretary of the Dutch dockers union (FNV Bondgenoten) called for solidarity and action behind the Dutch dockers,” they said. at a rally organized by the ILWU and Teamsters in front of San Francisco’s Transamerica pyramid building on January 12th. ILWU International President Bob McEllrath emceed the noontime rally. ILWU solidarity for Postmaster: Send address changes to The Dispatcher, 1188 Franklin St., San Francisco, CA 94109-6800. Postmaster: Send address changes to The Dispatcher, Dutch Dockers hen dockers in the turn the pension funds. That’s when building in downtown San Francisco Netherlands discov- the Dutch dockers decided it was on January 12th. The Teamsters time to go public, expose Aegon’s provided a 16-wheeler with a sound ered that their pen- W misdeeds, and start building com- stage, and a 20-foot tall inflatable sion funds had been stolen by a munity support on a global scale. “fat cat” to illustrate the growing big multi-national corporation, In the United States, the dockers danger of corporate greed.
    [Show full text]
  • AFL-CIO Legislative Guide
    AFL-CIO Legislative Guide Freedom to112th Form Congress Unions • Health(2011–2012) Care • Economic Recovery • Retirement Security • Education • Fair Elections • Workers’ Rights • Job Safety • Civil Rights • Freedom to Form Unions • Health Care • Economic Recovery • Retirement Security • Education • Fair Elections • Workers’ Rights • Job Safety • Civil Rights • Freedom to Form Unions • Health Care • Economic Recovery • Retirement Security • Education • Fair Elections • Workers’ Rights • Job Safety • Civil Rights • Freedom to Form Unions • Health Care • Economic Recovery • Retirement Security • Education • Fair Elections • Workers’ Rights • Job Safety • Civil Rights • Freedom to Form Unions • Health Care • Economic Recovery • Retirement Security • Education • Fair Elections • Workers’ Rights • Job Safety • Civil Rights • Contents 1. AFL-CIO About the AFL-CIO 1.1 2. THE ECONOMY The Economic Crisis: How Did We Get Here? 2.1 Financial Re-regulation 2.5 Revitalizing U.S. Manufacturing 2.9 Clean Energy Jobs 2.13 Climate Change, Energy and Environment 2.17 Federal Investment in U.S. Transportation System and Infrastructure 2.21 Corporate Bankruptcy Reform 2.25 Mortgage and Foreclosure Relief 2.29 Unemployment Insurance 2.31 Worker Training and Skills Development 2.33 State Budgets and Public Employees’ Pensions 2.37 State Fiscal Relief 2.41 3. FREEDOM TO FORM A UNION The Employee Free Choice Act 3.1 The ‘Secret Ballot’ 3.3 The Union Advantage 3.7 The Union Advantage for Women, Latinos and African Americans 3.9 4. HEALTH CARE The Affordable Care Act 4.1 Building on the Affordable Care Act 4.5 Health Care Cost Containment vs. Cost Shifting: Proposals to Reduce the Federal Deficit 4.9 Health Care Workforce 4.13 5.
    [Show full text]
  • Labor Interests and Corporate Power
    LABOR INTERESTS AND CORPORATE POWER MATTHEW T. BODIE* ABSTRACT Labor unions exert significant power through collective bargaining, pension fund investing, and political advocacy. But in each of these areas, unions face inherent structural limitations that severely constrain these powers. Workers need participation rights in corporate governance to overcome the multiplicity of forces arrayed against them. And rather than obviating the need for unions, worker corporate power would facilitate a different kind of labor representation—a transition to labor power that advocates for occupational interests and forms coalitions across the shifting political interests of different worker groups. * Callis Family Professor, Saint Louis University School of Law. Special thanks to David Webber and the editors of the Boston University Law Review for the invitation to this Symposium. I am much obliged for comments from Catherine Fisk and Rebecca Hollander- Blumoff. 1123 1124 BOSTON UNIVERSITY LAW REVIEW [Vol. 99:1123 CONTENTS INTRODUCTION ............................................................................................. 1125 I. LABOR INTERESTS .................................................................................. 1127 A. Collective Bargaining Representation ...................................... 1127 B. Pension Fund Management ....................................................... 1131 C. Political Advocacy ..................................................................... 1133 II. LABOR STRUGGLES ...............................................................................
    [Show full text]
  • Beyond the Employee Free Choice Act: Unleashing the States in Labor-Management Relations Policy Henry H
    Cornell Journal of Law and Public Policy Volume 19 Article 2 Issue 1 Fall 2009 Beyond the Employee Free Choice Act: Unleashing the States in Labor-Management Relations Policy Henry H. Drummonds Follow this and additional works at: http://scholarship.law.cornell.edu/cjlpp Part of the Law Commons Recommended Citation Drummonds, Henry H. (2009) "Beyond the Employee Free Choice Act: Unleashing the States in Labor-Management Relations Policy," Cornell Journal of Law and Public Policy: Vol. 19: Iss. 1, Article 2. Available at: http://scholarship.law.cornell.edu/cjlpp/vol19/iss1/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Journal of Law and Public Policy by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. BEYOND THE EMPLOYEE FREE CHOICE ACT: UNLEASHING THE STATES IN LABOR- MANAGEMENT RELATIONS POLICY Henry H. Drummonds* This Article proposes a major devolution of labor relations policy making authority to the states. Echoing the federalism discussion in other contexts like global warming and prescriptiondrugs, labor relation preemption doctrine should be examined and reformed by Congress. Ex- isting doctrine is entirely judge-made even though only Congress, not the states, carries authority under the constitutional division of powers to displace state law. This judge-createdpreemption law stifles labor rela- tions measures in the states, and leaves labor law smothered in federal orthodoxy. Federal labor law reform is necessary for two reasons. First, the private sector unions face near extinction as collective bargainingrepre- sentatives with fewer than eight percent of private sector employees rep- resented.
    [Show full text]
  • The Employee Free Choice Act of 2009, Labor Law Reform, and What Can Be Done About the Broken System of Labor-Management Relations Law in the United States
    Articles The Employee Free Choice Act of 2009, Labor Law Reform, and What Can Be Done About the Broken System of Labor-Management Relations Law in the United States By WILLIAM B. GOULD IV* Introduction THE FINANCLAL CRISIS AND MELTDOWN of 2008 and beyond poses the greatest economic challenge to the United States and the * William B. Gould IV is the Charles A. Beardsley Professor of Law, Emeritus at the Stanford University Law School. He was Chairman of the National Labor Relations Board from 1994-98 and has been a Member of the National Academy of Arbitrators since 1970. I would like to thank Mike Scanlon, Stanford Law School, Class of 2010, for his valuable research assistance. Much gratitude also goes to Joseph Norelli, Director of the NLRB's San Francisco Regional Office, for his commentary and ideas, as well as Professor Anne Joseph O'Connell of the University of California, Berkeley Law School for her insight into the issue of administrative delay. Kate Dowling, former Deputy Chief Counsel to the Chairman of the NLRB, 1997-98, and Counsel to the National Mediation Board gave me new insight into the voting procedures of the National Mediation Board. David Parker of the NLRB provided data not available in the Annual Reports. Diane Gee, Alternate Chair of the Ontario Labour Relations Board advised me of that agency's practices. Lisa Southern, the Vice Chair of the British Columbia Labour Relations Board kindly gave her time and expertise, and I gained a good deal of insight into the practical workings of Canadian labor law through a trip to the Vancouver Labour Relations Board in September 2008, a trip arranged by Peter Gall of Heenan Blaikie in Vancouver.
    [Show full text]