Benjamin Sachs proposes modifications to the Employee Free Choice Act in an effort to find a compromise between labor and business interests. Sachs observes that, at a certain point, the real challenge of this legislation is basically mechanical: How to give workers the ability to freely express their preference for a union without intimidation from either labor or the employer, when the latter holds all the advantages in terms of access and knowledge.
Sachs comes up with two solutions: First, taking the idea of early voting, he suggests that workers be able to vote on organization at any point in a certain window of time, either via a mailed abstentee ballot or visiting a third-location polling place. Second, he suggests that workers vote from home via telephone or Internet on Election Day. In either case, once 50 percent plus one is reached, the NLRB would certify the union, barring challenges from employers -- and there would be plenty -- questioning labor interference or whether certain employees belong in the same bargaining unit.
These are positive ideas in the sense that they remove the actual process of voting from the employer's hands. But there are a lot of questions up in the air. First, time-limits. One frequently floated EFCA compromise is accelerated elections -- once majority sign-up occurs, the election would be held within three to 10 days to prevent managment from firing organizers or threatening workers. Though the voting period is intimidating (often taking place under the eyes of management), a majority of managment malfeasance comes prior to voting, when firings, one-on-one meetings and references to firms being shut down typically occur. This system doesn't seem to address that problem.
Sachs' explanation of how the election process is initiated is confusing as well; in the first scenario, organizers would provide a list of workers who will participate in the election to the NLRB, but would they have to provide all the names of workers in an organizing unit (a fairly difficult task). If not, what percentage of workers would need to be on the list? Current organizing drives are frequently held up by the challenge of persuading employers to release information about who the relevant workers are. In his second case, he doesn't specify how the process starts, presumably with a majority sign-up, as it does now, which would no doubt raise the hackles of the business side.
Sachs has come up with a smarter way to do union elections than currently exists. But without significant elaboration, the plan doesn't seem to address the issues in EFCA that worry workers -- the potential for employer malfeasance -- nor management, whose real concern is less with secret ballots than with losing the opportunity to campaign against the union in ways legal or illegal. The other problem with the suggestion is that it fails to take up the two other big portions of the Employee Free Choice Act legislation, first contract arbitration and, much less controversial, larger penalties imposed on management for labor law violations. Those two would both be sticking points even if the organizing mechanism were agreed upon by both sides.
-- Tim Fernholz
