Does The Employee Free Choice Act Do What Its Name Implies?

Sunday, February 1, 2009 - 01:00
Adin C. Goldberg
Claudia T. Centomini

Editor: As background, could you please describe each of your careers and your practice with Day Pitney?

Rogers: I've been practicing law since 1975 with about 25-plus of those years devoted exclusively to the practice of traditional labor law and employment discrimination. I joined Pitney Hardin, now known as Day Pitney in 1999, becoming a partner in 2002.

Goldberg: I have been practicing labor and employment law exclusively since graduation from law school in 1976 and my practice includes both traditional labor law as well as employment litigation. I joined Pitney Hardin, now known as Day Pitney, as a partner in 2002.

Centomini: I worked for the government of Massachusetts for over nine years, first in the legislature, and then as general counsel of the Department of Labor and Industries. From 1993 to 1998 I was a commissioner at the Labor Relations Commission, the state equivalent of the National Labor Relations Board. I joined Day Pitney in 2007. I practice various forms of employment law, including wage and hour issues, employment discrimination and counseling matters, and labor law.

Editor: What are the pluses and minuses of the proposed Employee Free Choice legislation?

Goldberg: There are no pluses in the law from an employer's viewpoint. It is an entirely one-sided bill that is designed to help unions who are seeing their percentage of the work force decline every year. There's no particular reason to change what has traditionally been a secret ballot system for employees to decide whether they want to be represented by a union. The other aspect of the law that's a minus is that if a union does organize, sits down at the bargaining table and no contract is reached, a third party arbitrator, who doesn't know the needs of the business, or its finances or operations, is going to impose a contract on the parties. Again, that never has happened in the private sector, and is not beneficial at any time, but particularly at this time in terms of the economic conditions that exist today.

Editor: The proposal seems to impinge upon due process in the sense that the cards can gather dust for a relatively long period as compared with a one-time ballot.

Goldberg: There is a limitation on how long a card can be used for purposes of an expression of the employee's intent. The difficulty is that while a union is trying to organize, the company generally doesn't have an awareness of the organizing activity. Unions try to do this covertly. What the employees are hearing during the union-organizing drive at the time of the card-signing is only one side of the story - the union side. The advantage of the secret ballot process is that if a union does get cards signed and then goes to the NLRB to seek an election, at that point the NLRB notifies the company and a campaign gets underway whereby both sides have an opportunity to tell employees their side of the story before a vote takes place. It's not uncommon in these situations for one pro-union employee to pressure other employees to sign union cards - an employee is likely to "Ok, I'll sign the card," just to get a co-worker off his or her back. Later on, when there is an election, that employee may decide to vote against the union. Now, if this law passes, that card is going to, in effect, be binding on the employee.

Editor: Do you see any flaws in the secret ballot process?

Centomini: The National Labor Relations Board is a neutral body designed to ensure that the process is fair and carried out appropriately. Taking away that system and that protection by a neutral agency seems to create a flaw in the system as opposed to addressing a flaw.

Rogers: I'm not aware of any kind of generic problem with the way the NLRB has run these secret elections for 60-plus years. The National Labor Relations Board personnel monitor the election; there is an elaborate procedure that companies and unions undergo to set up the election, its location, protections for those casting ballots, etc. I have yet to see any convincing reason why this is not working, except for the fact that employees have not voted unions in as they traditionally did in the past. It's the result of the election the unions don't like - there's nothing wrong with the process.

Editor: Do you think EFCA legislation should include a process for authenticating the employee choice cards?

Goldberg: The process that exists now, which sometimes comes up if an employer suspects that a union is collecting cards from people who perhaps are not employees or that the signatures are forged, is that you request the NLRB to conduct a card check to look at the cards administratively. The NLRBtakes a look at what you've submitted to them in the form of evidence of who is on the payroll, signatures of employees, etc. The NLRB then makes an administrative determination as to whether the union has a sufficient number of valid signed cards to schedule an election. Whether that would continue, if this law is passed, is not known since the current proposal does not specifically touch on this. Under the proposed law these cards would be the determinative factor while currently the cards only determine whether the union has enough support to warrant the NLRB's conducting an election. So even if the cards contain fake signatures or were fraudulently obtained, the secret ballot serves to accurately show the sentiment of those who vote. But without that ballot voting process, fraudulently obtained signatures could be determinative in satisfying the majority showing necessary for the union to be organized. If the law is passed, even if stronger measures are taken to ensure that these cards are valid, the consequences of fraudulent cards will be drastic.

Editor: Do you think President Obama's expressed support for Employee Free Choice legislation and his nomination of Rep. Hilda Solis to be Secretary of Labor in the administration portends a strong administration effort to enact this legislation?

Centomini: Had there not been these economic issues coming into play, I would have expected this to be one of the first things passed in President Obama's first term.

Rogers: The nomination of Hilda Solis means that Obama is serious about this legislation. The appointment sent a strong signal of his backing for organized labor, and, of course, this is organized labor's number one priority.

Goldberg: An optimistic point of view from the business community's perspective might be that the payback to organized labor was the appointment of Hilda Solis rather than an aggressive pushing of this legislation for enactment. President Obama was a sponsor of this legislation as a senator, but now that he is President, whether he really pushes Congress to pass it is an entirely different question. Given the economic conditions and the fact that there is going to be opposition not only from the business community but even from some Democrats and more conservative legislators, I wonder how strongly he is going to push to see this legislation pass.

Editor: Are there any particular industries, or particular segments of the workforce, likely to be targeted for union organization if EFCA is enacted?

Centomini: I expect the retail industry would be a target, as well as healthcare, restaurants and construction, which is highly organized already.

Goldberg: I concur with that completely. In general, it is the white collar sector of the economy where unions have always had the most difficulty organizing, but where they see the greatest potential for growth in the future. Obviously as moremanufacturing jobs are leaving the United States, if unions are to survive, they're going to have to make some inroads into the white collar industries.

Rogers: I agree that union leaders see white collar employees as a prime target. Number one, the union is a business; they need dues to survive. Unfortunately, the effect of economic conditions on all types of employees, white and blue collar, makes those employees more vulnerable to union organizing. Unions come in with promises of job security which people are looking for now because there is so much insecurity in employment.

Editor: The 2007 EFCA legislation provided for binding interest arbitration if no collective bargaining agreement is reached after just 120 days from union certification by the NLRB. Do you agree that a third-party arbitrator should be in a position to impose workplace conditions under these circumstances?

Rogers: If the goal is to get a quick contract, interest arbitration will not get you there. Having been through a few of these interest arbitrations - where the parties agree to them in advance, and they're typically limited in scope to one or maybe a few issues - the expressed theory behind this is that it will result in an agreement in a short period of time. Anybody who has any practical experience in interest arbitration knows that is not the case. Interest arbitration takes a long time, typically, 12 months or longer, and it's very expensive, especially if you're dealing with an initial collective bargaining agreement where you have to set wage rates and other very important terms and conditions of employment. You'll need expert testimony from economists.

Editor: How does interest arbitration differ from ordinary arbitration?

Goldberg: Interest arbitration is a case in which there is no agreement on a particular issue. Such an impasse is submitted to an arbitrator who decides on how all issues should be resolved from the perspective of entering into an agreement. It's not interpreting an existing agreement, as in the case of most arbitrations, but establishing what that agreement should be. My concern is that arbitrators may be willing to give unions things that companies simply can't live with.

Editor: It is said that the percentage of the work force composed of union members has fallen from nearly 40 percent in the 1950s to just 7.5 percent of private sector workers today. Why has this decline has occurred?

Goldberg: It's obviously a combination of reasons. The first of which is that, in the 1950s, the American economy was driven by the manufacturing sector, which is not the case today. As that sector has declined in our economy, so has union representation. A lot of those jobs, initially, moved from the Midwest and the Northeast to the South, where people weren't necessarily receptive to unions, and eventually a lot of those jobs moved from the South to other countries. Another reason is that companies have become more enlightened in terms of what they need to do to retain workers. Companies today are providing higher wages, better benefits, and better protections for employees. As a result, employees don't feel they need a union to protect and represent them.

Editor: How do you advise your corporate clients to anticipate and prepare for enactment of a form of EFCA, and how should they generally respond to union organization efforts?

Centomini: We are training our clients about these issues and letting them know how best to respond before union organizing activities have occurred. One thing that I incorporate into training is the need to be aware of what your employees want, need and fear and how you can best address those issues internally, and how human resources and management can respond to those issues, thus eliminating the need for them to go elsewhere for protection.

Goldberg: I think we have to anticipate that some variation on EFCA is likely to pass. We are advising clients to be more open and assertive with their employees as to how they feel about unionization. Companies have to let employees know why they don't believe a union is in the best interest of the company or in the best interest of the employees. Very often unions organize covertly and management does not find out they're organizing until they go to the NLRB and file a petition for an election. If this law passes and the card check becomes the determining factor rather than a secret ballot election, it may be too late. In fact, in many instances, if you look at industries that have been heavily unionized, they may be laying people off and closing facilities. A union can very often hurt a company in terms of its competitive posture. What we're advising companies to do is to be more open in their communications with employees to let the employees know how the company views the question of unionization.

Please email the interviewees at, or ccentomini@daypitney.comwith questions about this article.