Speculation has increased in many quarters that components of the Employee Free Choice Act may be implemented administratively given organized labor’s failure to achieve legislative progress. The most recent warning signal came during a Boston labor law conference held on October 21, when National Labor Relations Board (NLRB) member Mark Gaston Pearce, a Democrat appointee, opined that the time period between the filing of an election petition and the election itself should be “as brief as possible.” Under EFCA, organized labor sought the elimination of any election period through its card check proposal in order to effectively silence employers attempting to educate employees with regard to unionization and the impact of any decision to unionize.

According to Pearce, the longer the time that elapses between the filing of a petition and the election, the more likely both parties will engage in unfair labor practices. Pearce expressed interest in the Canadian system’s representation election process, in which the election is conducted within five to 10 days after the initial petition. The average election in the U.S. varies between 30 to 40 days. Canadian labor law also dictates that any eligibility questions are addressed after the voting is complete, eliminating the need for a representation hearing prior to the election that is often the cause of a delay in the election date. During the event – New Directions and New Faces at the NLRB and the DOL – Pearce claimed that the NLRB will also likely consider whether notices of ULP violations should be posted electronically. The NLRB has already announced its intention to explore electronic voting in lieu of in-person voting as is the currently accepted practice.

Regardless of Pearce’s stated rationale for interest in a shortened election period, if implemented, the shorter the election period, the less opportunity an employer has to exercise free speech rights and educate employees. The result would be a workforce making a decision whether or not to unionize relying only on what facts the union organizing them chooses to disclose, even if misleading or incomplete. Combined with electronic voting which would almost certainly depress voter participation, the almost certain result is a dramatic increase in unionization. This, of course, was the primary goal of EFCA’s card check proposal.

Pearce became an NLRB member via recess appointment in March of 2010, and was subsequently confirmed by the Senate in June. His term expires in 2013.

Photo credit: NLRB.gov