The House of Representatives in the 109th Congress overwhelmingly passed the Employee Free Choice Act (EFCA) in the winter of 2007. The bill passed the Senate by a vote of 51-48, but died in that chamber when President Bush threatened a veto. However, the labor threat to employers remains.
Background
EFCA represents the most radical change in the National Labor Relations Act (NLRA) since its inception in 1935. EFCA would eliminate the secret ballot election by employees to determine whether they want to be represented by a union. Instead, unions could gain representative status simply by getting a majority of employees to sign union authorization cards. Since most union organizing manuals emphasize that card signing should be done in secret, companies may be faced with union representation before they have the opportunity to inform employees of the limits of collective bargaining.
The Democrats have indicated that EFCA will be one of the first bills introduced in Congress in 2009. In addition, Barack Obama, Democratic candidate for President, has expressed strong support for EFCA and indicated that, if elected, he would readily sign it into law.
Executive Summary
The stated purpose of EFCA is to amend the NLRA “to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.” The devil, however, is in the details.
If enacted, EFCA will make the following key changes to the NLRA:
- Certification: The bill allows for certification of a union as a bargaining representative without a secret ballot or any other election upon the National Labor Relations Board’s (“Board’s”) finding that a majority of bargaining unit employees have signed authorization cards for a particular union. This assumes there is no other individual or labor organization currently certified or recognized as the exclusive representative of any of the employees in the unit. EFCA also requires the Board to develop model authorization language and establish authentication procedures to be used to certify bargaining representatives.
- This assumes there is no other individual or labor organization currently certified or recognized as the exclusive representative of any of the employees in the unit.
- EFCA also requires the Board to develop model authorization language and establish authentication procedures to be used to certify bargaining representatives.
- Mediation / Arbitration in First Contract Bargaining: The bill states that within ten days after receiving a written request for collective bargaining from a newly organized or certified representative, the parties must meet and begin to bargain collectively. After that: If the parties fail to reach an agreement within 90 days, either party may request that the dispute be mediated by the Federal Mediation and Conciliation Service (FMCS). If FMCS is unsuccessful at bringing the parties to agreement within 30 days, the dispute will go to arbitration, the results of which are binding for two years. Time limits may be waived or extended by mutual agreement of the parties.
- If the parties fail to reach an agreement within 90 days, either party may request that the dispute be mediated by the Federal Mediation and Conciliation Service (FMCS).
- If FMCS is unsuccessful at bringing the parties to agreement within 30 days, the dispute will go to arbitration, the results of which are binding for two years.
- Time limits may be waived or extended by mutual agreement of the parties.
- Injunctions: EFCA would revise enforcement procedures under the NLRA with respect to unfair labor practice charges to provide: Priority for preliminary investigation of alleged unfair labor practice violations by employers during organizing drives or the period of time between when a bargaining representative is first recognized and a collective bargaining agreement is reached. That the Board must seek an injunction against employers upon a showing of reasonable cause that an employer discharged or otherwise discriminated, threatened discharge or otherwise threatened to discriminate, or otherwise significantly interfered with employee §7 rights during an organizing campaign or first contract bargaining. That courts may grant temporary restraining orders or other injunctive relief.
- Priority for preliminary investigation of alleged unfair labor practice violations by employers during organizing drives or the period of time between when a bargaining representative is first recognized and a collective bargaining agreement is reached.
- That the Board must seek an injunction against employers upon a showing of reasonable cause that an employer discharged or otherwise discriminated, threatened discharge or otherwise threatened to discriminate, or otherwise significantly interfered with employee §7 rights during an organizing campaign or first contract bargaining.
- That courts may grant temporary restraining orders or other injunctive relief.
- Back Pay: EFCA provides for back pay plus two times (2x) that amount as liquidated damages for §7 rights violations in an organizing campaign or first contract bargaining.
- Civil Fines: EFCA also allows for fines of up to $20,000 for each willful or repeat violation of employee §7 rights during a campaign or first contract bargaining.
Be Prepared
Employers should start to prepare now so that they will be ready should EFCA become law in early 2009. Employers should, among other things:
- Consider developing new employee orientation programs that face this issue head on.
- Continue employee education on card signing and union representation throughout the employment relationship.
- Train supervisors on the bill and its ramifications, and more importantly, how to establish good employee relations and effective communication.
Additional Information
Given the current labor threat, now is the time to take a realistic view of your work environment, put systems in place, and prepare for the potential passage of EFCA. As a place to start, more detailed information will be provided in a free Webinar: “Employee Free Choice Act: Labor’s Attack on Your Employees’ Right to Choose,” to be held on September 9, 2008 from 1:00 p.m. ET (12:00 a.m. CT) – 2:00 p.m. ET (1:00 p.m. CT).
For further information, please also contact any member of the McGuireWoods Labor & Employment or Employee Benefits Teams.