Guest Blog: Hirsch on the American Employee Free Choice Act

A while back, I did an entry describing how Wal-Mart was warning its employees in the U.S. about  the horrors that could be bestowed upon them if Obama were to win the upcoming American election.   That horror would take the form of a bill known as the Employee Free Choice Act, which Obama has gone on record as supporting.  The most important feature of that proposed legislation–the part that gives Wal-mart managers sweaty nightmares–is a card-check model of certification, similar to that still used in some of Canada’s jurisdiction (Federal, Quebec, Manitoba, for example).  
The trouble with a card-check model, from the perspective of a company like Wal-mart, is that it limits the ability of the company to try and convince employees that collective bargaining is very bad for them (or in Wal-Mart’s case, to threaten to close the store and fire everyone if the union wins the vote:  see my entries on Wal-mart’s closure of a unionized store in Quebec and its unlawful threat to close the Windsor, Ont. store if the employees voted for the union).  Ironically, it is precisely because of companies like Wal-mart, who are prepared to break labour and employment laws in order to prevent their employees from exercising the right to try out collective bargaining, that the movement for a card-check model maintains its momentum.
What struck me most about the fact that Wal-Mart was holding captive audience meetings to ‘warn’ employees of the dangers associated with a card-check model is that it would feel the need to do so in the first place.  Could this Employee Free Choice Act actually make it into law in the U.S. if Obama wins?   Doorey’s Workplace Law Blog decided to pose this question to our American friend and labor law expert, Professor Jeffrey Hirsch of the University of Tennesse Law School.  Here is his response:

The Employee Free Choice Act is a U.S. labor bill that has garned a
surprising amount of attention.  Part of the reason is that it was one
of the first pieces of legislation introduced by the Democratic majority
in Congress after the 2006 election.  Employers’ strong opposition and
the overly simplified analogy to political voting has probably also
helped attract attention.
EFCA would require the NLRB to certify a union that obtained
authorizations cards from a majority of employees, much like some
provinces in Canada have done.  EFCA would also create fines and
imposing certain arbitration requirements on first contract
negotiations, among other things.  The argument for EFCA is as a means
to offset what unions widely perceive as the NLRB’s failure to restrict
employers’ intimidation of employees during campaigns.  The
opposition–often using a mob/union comparison–decries the lack of a
secret ballot.  I doubt the sincerity of many employer-side groups, who
rarely care much about employees’ free choice unless it’s to vote
against unions, but acknowledge that secret ballots would be the best
choice in an ideal world.  Of course, it’s not an ideal world, as the
level of employer intimidation that goes on almost certainly exceeds
union intimidation.  EFCA, then, seems to me to be an imperfect solution
to a bad situation.
The prognosis for EFCA’s passage probably comes down to a simple number:
60.  In other words, if Obama wins the election and Democrats get 60 or
more seats in the Senate (which is required to vote for cloture and end
a filibuster), EFCA will almost certainly pass.  Anything short of that
scenario likely means that it will not pass.

Interesting times indeed.  If the law actually passes, it could influence the discourse in Canada, where advocates of mandatory ballots have often argued that the U.S. vote model, although flawed in some aspects of its design (such as the extended delays prior to votes), ensured greater employee freedom to decide than does a card-check system.   How odd it would be to hear Canadian labour law scholars and unions arguing that the Canadian system (now largely a mandatory ballot one) needs to catch up to the American card-check model.