March 19, 2009
Union-Backed Bill to Spur Organizing Greeted with Significant Congressional and White House Support
A bill that would change the nation’s labor law to a degree unknown since 1947 was introduced in both houses of Congress on March 10, 2009. The Employee Free Choice Act (“EFCA”) was passed by the House of Representatives in March of 2007, but was not voted on in the Senate because of fierce opposition from Republicans and then-President George W. Bush. However, with a sympathetic President in the White House, who has revitalized interest in the labor-backed measure by placing it high on his agenda and supporting it in his public statements, EFCA could become law in 2009. We summarize here the key components of the legislation, changes the bill would make to current law if enacted, and possible issues the National Labor Relations Board (“Board”) and the courts would face.
EFCA seeks to amend three areas of labor relations law:
- the process by which a union gains recognition as the exclusive bargaining representative for a unit of employees;
- the initial collective bargaining process; and
- employer penalties for violating the law.
Union Certification: “Card Checks” Replace Secret Ballot Elections
Unions typically gain recognition by winning a secret-ballot election conducted by the Board. If EFCA becomes law, however, unions can gain recognition simply by proving that a majority of an employer’s workers in a given work unit has signed union recognition cards. No Board-conducted secret-ballot election would be held. As soon as a single employee informs the Board that a majority of workers in a unit have signed union cards, the Board would investigate the claim. If the Board verifies the claim, the employer would be obligated to recognize and bargain with the union, possibly as early as ten days after a majority of the workers signed the cards. EFCA grants the Board the power to adopt procedures to verify a representation claim of majority status.
The bill largely would eliminate the secret-ballot election process. Under current law, the Board can hold a secret-ballot election where 30% or more workers in a bargaining unit have signed union cards. Unions, however, rarely proceed with an organizing campaign where they lack signed cards from a majority of workers.
Under current law, if more than 50% of employees in an appropriate unit have signed recognition cards, unions can utilize “card checks” to gain recognition if the employer is willing to forego the right to a secret-ballot election. Employers rarely do so voluntarily because they often question the means by which union organizers acquired signatures on cards.
Even now, card checks may determine union recognition should an employer engage in unfair labor practices that the Board finds has destroyed the “laboratory” conditions needed for a secret-ballot election. But the Board seldom finds employers guilty of engaging in unfair labor practices during organizing drives. Even rarer are findings that violations are severe enough to have destroyed the “laboratory conditions” for an election.
Initial Bargaining: Strict Timetables, Mediation and Binding Arbitration
EFCA places stringent timetables on initial collective bargaining between an employer and a newly recognized union. No such timetables presently exist. Under EFCA, within ten days of gaining recognition, the union and the employer may have to commence negotiations. If the parties fail to hammer out a collective bargaining agreement within ninety days from the date bargaining begins, the bill requires the parties to permit the Federal Mediation and Conciliation Services ("FMCS") to mediate any disagreements if a party requests such assistance. Should mediation prove unsuccessful within thirty days of such a request, EFCA sends the parties to binding FMCS arbitration over the agreement. There is no limit on how long the arbitration may take. Once the arbitrator decides the terms of the collective bargaining agreement, the parties are bound for at least two years. Employees may never get a chance to vote on the agreement. The parties may extend any of these time periods by mutual agreement. It is unclear whether arbitration would commence in the event neither party requests mediation.
Employer Penalties for Violating the Amendments
The bill mandates that the Board investigate virtually any charge of an employer unfair labor practice from the start of an organizing drive until the completion of first contract negotiations. EFCA requires the Board to accord such a charge priority processing (that is, the Board will place such charges before all others for investigation and disposition) and to seek an injunction for alleged violations where the Board believes such relief is warranted. Additionally, EFCA provides employees who are deemed victims of such unfair labor practices with a remedy of triple back pay. The bill also imposes a civil penalty of up to $20,000 on an employer for each violation found to have been committed that is willful or repetitive.
Jackson Lewis attorneys are available to assist employers who have questions about the impact this pending legislation may have on their workforce.
© 2007 Jackson Lewis LLP. Reprinted with permission. Originally published at www.jacksonlewis.com. Jackson Lewis LLP is a national workplace law firm with offices nationwide.