[Congressional Record (Bound Edition), Volume 155 (2009), Part 14]
[Extensions of Remarks]
[Pages 18830-18831]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   IN SUPPORT OF EMPLOYEE FREE CHOICE

                                 ______
                                 

                            HON. ZOE LOFGREN

                             of california

                    in the house of representatives

                        Wednesday, July 22, 2009

  Ms. ZOE LOFGREN of California. Madam Speaker, I would like to submit 
for the record a speech, titled ``What Would Employee Free Choice Mean 
in the Workplace'' given by Professor William B. Gould IV, Charles A. 
Beardsley Professor of Law, Emeritus at Stanford Law School; Chairman 
of the National Labor Relations Board in the Clinton Administration 
(1994-1998); member of the National Academy of Arbitrators since 1970; 
Independent Monitor for Freedom of Association Complaints, First Group 
America, 2008, to the 58th Annual Conference of the Association of 
Labor Relations Agencies on July 20, 2009 in Oakland, California.

         What Would Employee Free Choice Mean in the Workplace?

       It is a pleasure to be with you here today. By my rough 
     count, this is my third speech to this organization during 
     the past couple of decades. I have enjoyed the chance to 
     speak to and with you in the past and look forward to today's 
     program. I am particularly pleased to renew my contact with 
     Maria-Kate Dowling, Associate General Counsel of the National 
     Mediation Board.
       Kate was my Deputy Chief Counsel at the NLRB in 1997-98, 
     one of the youngest women (perhaps the youngest) to ever hold 
     that senior of a position. She is illustrative of the very 
     best and brightest who should--and I believe now will--
     receive great recognition in Washington today.
       I want to commend the Association of Labor Relations 
     Agencies for holding this session here today on the practical 
     implications of the Employee Free Choice Act. This 
     significant legislative proposal warrants dispassionate 
     examination in an arena which has been too frequently divided 
     and polarized. My sense is that the bill even with proper 
     amendments--and I am quite confident that if it is enacted it 
     will be amended--will have a considerable impact on the 
     workplace. EFCA and labor law reform contain some of the 
     assumptions that I have held for more than four decades, 
     i.e., that the Act is plagued with lethargic enforcement, 
     creaky and convoluted administrative procedures and 
     ineffective remedies, that it is not working well and that, 
     as a result, some employees who wish to join unions are 
     unable to do so. No one can say with certainty what the 
     precise union membership impact of law reform will be, given 
     the fact that so many other factors are responsible for the 
     precipitous decline of trade unions. But it is safe to say 
     that it is unlikely that any statutory reform in the 
     foreseeable future can by itself accomplish the desirable 
     objective of restoring the middle class--though its 
     proponents so often claim it will!
       The fundamental need for reform relates to the rule of law. 
     The National Labor Relations Act, once considered a bedrock 
     of labor rights of freedom of association, has not been 
     performing as advertised. There is nothing terribly new about 
     this story. The overriding theme is that justice is being 
     denied through its delay! The loopholes, disproportionately 
     exploited by employers, have dilated into a ``black hole'' in 
     Washington headquarters where complaints can sit for more 
     than five years while workers await reinstatement and back 
     pay.
       How can we properly address this? I think that the Employee 
     Free Choice Act is right on the mark in establishing a treble 
     damage award for back pay. For too long, an award of back pay 
     minus interim earnings has been regarded by everyone involved 
     on all sides as a ``license fee'' for employer misconduct 
     because back pay is cheaper than a union contract.
       EFCA also provides for fines up to $20,000 for each 
     employer violation as well as new contempt sanctions. And 
     again, I think that the new law has it right in expanding and 
     making more effective the Board's injunctive authority for 
     employer unfair labor practices--in much the same manner that 
     the statute has established them for union unfair labor 
     practices since the Taft-Hartley amendments. Judge (and I 
     hope soon-to-be Justice) Sonia Sotomayor's opinion in 
     Silverman v. Major League Baseball Player Relations 
     Committee, Inc. upholding my Board's view that an injunction 
     was appropriate in the baseball players' 1994-95 strike has 
     made this provision's importance about as well known as 
     anything.
       On other key issues I think that there is much more room 
     for debate. While card checks are evidence of employee 
     support in some circumstances, I think that they are, as the 
     Supreme Court has characterized them, second best. And in 
     Canada, where the consensus in the 1960s favored card check, 
     a majority of provinces have now settled on secret ballot box 
     elections. Moreover, there will be fewer disputes over the 
     way in which employees mark secret ballots than there will be 
     over cards; fewer disputes means less litigation and less 
     delay.
       But the unions are right to say that the election system 
     (and indeed many other provisions of the statute) is broken. 
     Accordingly, my view is that the principal breakdown in the 
     election scheme--which has led to the card check proposal--is 
     delay through which employees are subjected to a one-sided, 
     anti-union campaign by employers for at least two months, and 
     in a minority of instances a much more considerable period of 
     time. The answer here is to both expedite elections--to 
     require that they be held within a couple of weeks of the 
     union's petition, as is done in the provinces of Ontario and 
     British Columbia--and to reverse Supreme Court precedent 
     excluding non-employee union organizers from company premises 
     so that they can carry their side of the message to employees 
     more effectively in the run-up to the ballot itself.
       Another reform can provide for postal ballots which give 
     employees a greater opportunity to cast their vote privately 
     in a neutral facility of their choosing outside of the 
     employer's control. In truth, the statute already provides 
     for this, as I noted in my concurring opinion in San Diego 
     Gas & Electric--but I think that Congress can be helpful by 
     explicitly providing that postal ballots can be available 
     within the Board's discretion along the lines that I set 
     forth in San Diego Gas. The plurality in that case, which 
     limited such ballots only to cases where employees are 
     scattered and unavailable, did not rely upon any provision of 
     the statute as it is written today and the Board, as well as 
     Congress, can reverse that poorly-reasoned opinion at any 
     time that it wants.
       The third important feature of EFCA provides for interest 
     arbitration in first contract negotiations. Clearly, as 
     Professors Ferguson and Kochan have established, there is a 
     problem here--only 56% of newly-certified bargaining units 
     reach a contract, and only 37% do so within the first 
     certification year--that cannot be easily remedied by 
     refusal-to-bargain litigation. The surface bargaining cases 
     have not been an effective avenue through which to establish 
     or restore collective bargaining relationships that should 
     have been less dysfunctional in the first instance.
       However, EFCA-sponsored interest arbitration, in contrast 
     to the ``grievance'' or ``rights'' variety, is relatively 
     untested in the private sector in the United States. In 
     Canada, which has first contract arbitration in most 
     provinces, the process is rare and used sparingly (except in 
     Manitoba where it is automatic after a specific time period). 
     The conundrum is that the potential for a mechanism like this 
     must be available to rescue bargaining which is at a stall, 
     and yet its mere availability can undermine the collective 
     bargaining process itself which is furthered by the Act.
       The proper approach here, it seems to me, is to provide 
     that the mediator--perhaps in consultation with the NLRB 
     itself--should certify after extensive mediatory efforts that 
     collective bargaining is either at an impasse or 
     dysfunctional. As it presently stands, EFCA simply allows for 
     arbitration to be invoked after three months of collective 
     bargaining and subsequent mediation. Not only is this period 
     of time too abbreviated, but by spelling out a specific 
     period of time after which arbitration is automatic, it 
     encourages the parties to maneuver in anticipation of 
     arbitration in a way which can erode the voluntary collective 
     bargaining process. Moreover, this approach fails to take 
     into account the fact that both sides are frequently learning 
     for the first time as they put together their very first 
     collective bargaining agreement.
       Arbitration must be used sparingly, although it should 
     remain available in the final analysis so as to shore up a 
     relationship which might otherwise disappear. This must be 
     what the law encourages not only because of the 
     considerations above but also because experience with 
     interest arbitration in the public sector--where it is 
     available in many jurisdictions for police and fire--is 
     itself extensive and time-consuming. Amongst the interest 
     arbitrations that I have done was one between the Detroit 
     Board of Education and the Federation of Teachers twenty 
     years ago where hearings continued day and night for a week, 
     detailed briefs were filed thereafter, and the arbitration 
     board was required to meet and decide on the basis of 
     voluminous submissions at the end of it all. Though we cannot 
     tolerate delays such as the fifteen months which apparently 
     exist in the public sector in Michigan, framers of the law 
     must realize that it will take considerable time and expense. 
     This is another reason why arbitration should be the rare 
     exception and not the rule at the end of collective 
     bargaining.
       Yet there is one other consideration. My view is that 
     final-offer baseball arbitration, where the arbitrator is 
     obliged to select one package offer or the other, is the best 
     approach because it creates uncertainty which promotes 
     voluntary negotiation. But because there is much uncertainty 
     for the arbitrator as well as for the parties, I am of the 
     view that his award should appear initially in the form of 
     recommendations and that the parties should have 10-14 days 
     to negotiate with the arbitrator acting as a mediator. If the 
     parties cannot resolve their differences in that time, the 
     recommendations within the parameters of the initial award 
     would be

[[Page 18831]]

     final and binding. In this way the real potential for 
     arbitral error is diminished, and the integrity of the 
     process maintained.
       There are a few other matters that I think you should 
     consider which should be a vital part of labor law reform, 
     and yet are not covered in EFCA. First, Congress should 
     encourage rulemaking in lieu of adjudication so as to avoid 
     repetitive and wasteful litigation which enhance cost and 
     delay. My Board attempted to do this in the 1990s and was 
     stopped by appropriations riders fashioned by the Republican 
     Congress. A different political environment exists this time 
     around and Congress and the Board should take full advantage 
     of the opportunity to resolve disputes expeditiously and 
     sensibly.
       Second, the amount of litigation before the Board can be 
     reduced if Congress unfreezes the Board's jurisdictional 
     guidelines and thus decreases the volume of cases that come 
     before it by taking into account fifty years of inflation. 
     The freeze has resulted in NLRB assertion of jurisdiction 
     over very small employers. Again, the Republican Congress in 
     the 1990s insisted that I withdraw Board jurisdiction when I 
     was Chairman but, as I pointed out to them, only Congress can 
     change these statutory provisions which were enacted a half-
     century ago and which have left Board jurisdiction in terms 
     of dollar values the same as it was then--even though the 
     dollar is worth one-seventh of what it was at that time.
       But at this time, Congress can initiate action on this 
     which will both deregulate labor-management relations for 
     small employers in some jurisdictions and, since state law 
     should be followed, also allow the states to enact more 
     expansive laws protecting union organizing. This promotes the 
     kind of laboratory conditions of which Justice Brandeis spoke 
     a century ago and relieves small business from the federal 
     regulation under which it currently lives. Here Congress can 
     and should take the lead as the 1959 amendments require.
       Third, labor law reform must take into account that it is 
     not simply employers who are promoting delay before the NLRB 
     and the courts at this juncture--in many instances it has 
     been the Board itself as cases have languished in the black 
     hole in Washington headquarters for half a decade or more 
     while workers awaited reinstatement and back pay. As 
     Professor G. Calvin Mackenzie of Colby College has noted, 
     much of this is attributable to the ``transcendent loss of 
     purpose in the appointment process'' at the NLRB where 
     appointees ``come from congressional staffs or think tanks or 
     interest groups--not from across the country but from across 
     the street: interchangeable public elites, engaged in an 
     insider's game.'' The packaging and ``batching'' of 
     appointees was unknown prior to 1994 and has become so 
     embedded in the appointment process that even President Obama 
     has batched a Republican Senate Labor Committee policy 
     director with his two Democratic nominees.
       This approach should be abandoned. It fosters delay through 
     the reticence of decision-makers who procrastinate, concerned 
     about congressional reaction. If reappointments were barred, 
     this tendency would be diminished. At the same time, Congress 
     should extend the term of office to eight years, reduce the 
     number of Board members from five to three so as to eliminate 
     the potential for individual Board member obstruction (with 
     the reduction of cases obtained through withdrawal of 
     jurisdiction this can work more easily), and explicitly 
     provide that when a Board member's term expires he or she can 
     serve no longer. In this way we will attract the best people 
     who will serve for the very best reasons.
       Finally, one of the most interesting developments in recent 
     years relates to alternative dispute resolution mechanisms 
     devised by the parties, particularly as a result of their 
     frustration about the National Labor Relations Board and its 
     ability to function promptly. One classic example of this 
     approach is set forth in the procedures devised by First 
     Group America to deal with complaints involving freedom of 
     association issues arising out of union organizational 
     campaigns or relating to discrimination on account of union 
     activity. The First Group machinery provides that an 
     Independent Monitor (I have functioned in that capacity for 
     the past 18 months) is to make public recommendations 
     regarding such complaints within 30-60 days of the time that 
     they are filed. Most recommendations have been accepted and 
     the program has been praised by both sides. The process is 
     able to move with dispatch because there is simply a 
     provision for investigation rather than a full-fledged 
     hearing. Congress ought to explicitly encourage parties to 
     devise such procedures, and their existence may provide 
     guidance with regard to how lengthy proceedings before the 
     Board and the courts--which are frequently excessively time-
     consuming or wasteful--can be abbreviated.


                               Conclusion

       The job of labor law reform is an important one and the 
     Employee Free Choice Act has done more than any other 
     mechanism in recent years to get this issue front and center. 
     The chance to engage in this process does not come often and 
     thus it is important that the country gets it right this time 
     around.
       EFCA is right on the mark when it comes to sanctions, 
     damages, penalties, and contempt proceedings. It has gone off 
     course in connection with card check--but fortunately through 
     expedited and postal elections as well as union access to 
     private property that matter can be addressed with some 
     measure of success. On arbitration, EFCA got us part of the 
     way there, but much more needs to be done and revised.
       The reform initiative provides a great opportunity to have 
     a new look at some of the problems that have plagued the 
     Board and the Act for far too long, i.e., the appointments 
     process and its relationship to delay, the failure or 
     inability to borrow from voluntary machinery, and the need to 
     get small employers beyond the reach of the Act either for 
     the purpose of deregulation or for, in those jurisdictions 
     that want it that way, more expansive protection than is 
     provided by the National Labor Relations Act even as revised 
     in 2009--if it is to be.
       This is the beginning of a great debate. It is a debate 
     which necessarily involves labor and management, Democrats 
     and Republicans, and the result must be not only sensible in 
     content but the product of some measure of consensus and 
     compromise.

                          ____________________