The Corner

“Quickie” Elections under EFCA

Jonah’s correspondent mentions one of the possible amendments to EFCA: the substitution of “quickie” elections for card check.

 

The idea arises from the premise that dispensing with the secret ballot in union elections is enormously unpopular, making passage of EFCA as presently drafted difficult (difficult, but far from impossible). So, to preserve the secret ballot while still making it much easier for unions to organize, some have suggested the “quickie” election compromise.

 

A ”quickie” election  probably would be similar to an election under the NLRB’s proposed RJ petition, with one possible significant difference: advance notice to the employer. That is, under RJ, the union and the company would jointly petition the NLRB for an election on a certain date (within 28 days) and at an agreed time and place (post-election procedures are streamlined so that objections and unfair labor charges won’t impede swift certification of the union). Thus, the employer, theoretically, has agreed to the fundamentals of the election and has an opportunity, however abbreviated, to tell employees the company’s positions on the issues driving the election.

 

A “quickie” election amendment probably wouldn’t give an employer even the limited heads-up provided under an RJ. The NLRB likely would direct the election a very short time (perhaps as few as 14 days) after the union files an election petition. This wouldn’t give the employer anywhere near the time necessary to counter the arguments the union has been making to employees for the several months it’s been organizing the workforce — usually without employer knowledge. (In 2007, the median time between the filing of an election petition and the conduct of an election was 39 days. Most employers will tell you that it’s difficult to communicate effectively even in that amount of time, particularly because unions have been campaigning among the employees for up to a year before they file their election petitions with the NLRB).

 

A “quickie” election may be preferable to no election, but EFCA opponents shouldn’t declare victory if they succeed in forging the compromise. A secret ballot cast by an uninformed employee — or more accurately, an employee informed by only one side — isn’t something to celebrate. Combined with mandatory arbitration, the “quickie” amendment will create its own host of headaches.

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

Most Popular

The Pollster Who Thinks Trump Is Ahead

The polling aggregator on the website RealClearPolitics shows the margin in polls led by Joe Biden in a blue font and the ones led by Donald Trump in red. For a while, the battleground states have tended to be uniformly blue, except for polls conducted by the Trafalgar Group. If you are a firm believer only in ... Read More

The Pollster Who Thinks Trump Is Ahead

The polling aggregator on the website RealClearPolitics shows the margin in polls led by Joe Biden in a blue font and the ones led by Donald Trump in red. For a while, the battleground states have tended to be uniformly blue, except for polls conducted by the Trafalgar Group. If you are a firm believer only in ... Read More
Law & the Courts

Some Counterfactual Thinking

Election Day is one week away. Can you believe it? On the menu today: contemplating what would be different, and what would be the same, if Ruth Bader Ginsburg had retired in 2013 instead of staying on the Court until her death earlier this year; a couple of flubbed words on the campaign trail; yes, people really ... Read More
Law & the Courts

Some Counterfactual Thinking

Election Day is one week away. Can you believe it? On the menu today: contemplating what would be different, and what would be the same, if Ruth Bader Ginsburg had retired in 2013 instead of staying on the Court until her death earlier this year; a couple of flubbed words on the campaign trail; yes, people really ... Read More
Law & the Courts

Whose Seat?

Amy Coney Barrett is confirmed. And I think there are two little things to say about it. The first is that we very likely have in Barrett the true successor to Antonin Scalia on the Court. Barrett clerked for Scalia and her articulation of his philosophy is probably the most faithful on the court. Justices ... Read More
Law & the Courts

Whose Seat?

Amy Coney Barrett is confirmed. And I think there are two little things to say about it. The first is that we very likely have in Barrett the true successor to Antonin Scalia on the Court. Barrett clerked for Scalia and her articulation of his philosophy is probably the most faithful on the court. Justices ... Read More