Employee Free Choice Act

Date: August 3, 2009

Employee Free Choice Act: A Sign of Things to Come?

On March 10, 2009, Senator Tom Harkin (D-Iowa) and Representative George Miller (D-California) reintroduced the “Employee Free Choice Act of 2007” (EFCA) (S. 1041, H.R. 800), legislation, which, if passed, would dramatically change the way unions can organize workers. The EFCA was initially introduced in 2007, but was derailed by the Senate.

Unlike 2007, the political makeup of the 2009 Senate is significantly different and it is very unlikely that those opposed to this legislation will be able to use the filibuster to derail it. The Senate is expected to take up this new legislation in late-April or early-May. Once the EFCA clears the Senate, it is expected that the House of Representatives will have a much easier time approving this controversial legislation. Let’s take a closer look at what the law provides and why it is so significant for all private sector employers.

What does the EFCA provide?

Under the EFCA, rather than allow employees to exercise their long-standing right to a private ballot election during an organizing campaign, a union could be designated as the exclusive bargaining agent based solely on the signing of union authorization cards for a majority of the workers in the bargaining unit. Employees and employers would no longer have the right to a secret ballot election to determine if the employees really want to be represented by a union.

The EFCA would also require that once the union is certified as bargaining agent for the unit, the employer and union would have to reach agreement on their first collective bargaining agreement within 90 days. If the parties fail to do so, then the Federal Mediation and Conciliation Service (FMCS) would be called in to mediate. If no contract is reached after 30 days of mediation, then the dispute would be referred for final and binding arbitration. A panel of arbitrators would then decide the terms of a new collective bargaining agreement for the employer, the union and the workers, and agreement that would be for at least two years.

The EFCA also includes stiff penalties for any violation of the National Labor Relations Act (NLRA) committed by an employer, not the union, during the union organizing campaigns or while a first collective bargaining agreement is being negotiated. Those one-sided penalties would include civil fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated employee’s NLRA rights during an ongoing campaign or first-contract drive; and treble back pay to any employee who was discharged or discriminated against during an organizing campaign or first-contract drive.

Under the EFCA, the NLRB will be required to seek a federal court injunction against a union if there is reasonable cause to believe the union has engaged in prohibited secondary boycotts, and against an employer if there is reasonable cause to believe the employer has disobeyed or discriminated against employees, threatened to discharge or discriminate against employees or engaged in conduct that significantly interferes with employee rights during an ongoing campaign or first-contract drive.

Problems with the EFCA for employers and employees

If the EFCA is enacted, it will turn the traditional way unions attempt to organize the work force, and employers’ response to an ongoing drive on its head. It will also trample on the very rights of the employees that the NLRA was designed to protect.

No secret ballot elections

First, if enacted, the EFCA will eliminate the secret ballot in the work place. Under current law, unions may organize through either a federally supervised private ballot or election or a “card check” system. Under EFCA, the union’s status would be decided not by a private vote, but through the collection of union authorization card purportedly signed by workers expressing their desire for a union to represent them.

Increased coercion to sign authorization cards

Second, by imposing mandatory card check, rather than a private ballot election, workers’ right to choose, freely and anonymously, whether to unionize, would be subject to coercion, pressure and outright intimidation. It is not secret that during union organizing drives, union business agents and pro-union supporters often exaggerate the benefits of joining a union and, in too many cases, put tremendous pressure on workers to sign up or face public criticism and ridicule.

If the EFCA is adopted as proposed, allowing unions to organize solely through a card check system, it is very likely that the amount of coercion and intimidation placed on employees would increase significantly.

No employee right to privacy in deciding on union representative

Third, unlike a secret ballot election, using a card check system strips workers of their right to privacy in making this important decision. The entire card check process is open and conducted in the public and, therefore, an employee’s decision to sign or not sign the card is well-known. Again, the level of coercion and intimidation could play a significant and improper factor in deciding whether a union is selected as the employee’s exclusive bargaining representative.

Stiff penalties only for employers and not unions

Fourth, under the EFCA, there are enhanced penalties imposed on employers, but not unions, if they coerce an employee during a card check campaign or first contract drive. Apparently, the unions are free to engage in coercive and threatening conduct without the fear of these enhanced penalties.

Labor agreement to be decided by arbitrators, not employees

Finally, in the event that the union and employer were unable to reach agreement on a first collective bargaining agreement, under the EFCA, an arbitration panel would decide on the terms of that first contract without input from the employees. Moreover, that first contract would last for a minimum of two years, possibly locking in the employees to an unfavorable contract, in which they had no input in creating.

Bottom Line

Although there is some hope that the EFCA will not make it out of the Senate in its present form, in the event that this radical legislation makes it through, it will be the most significant change in labor relations since the enactment of the National Labor Relations Act in 1938. Depending upon what changes are made to the EFCA as it makes its way through Congress, most private sector employers will have to take immediate steps to deal with this new legislation, once it is enacted.

As noted above, if the card check provisions remain intact, a union can be formed by having union authorization cards signed by a simple majority of the members of the bargaining unit. Oftentimes, the employer may not have a clue that this secret organizing is taking place. Once that occurs, the employer has no chance of convincing its employees that a union is not necessary. As they say in tennis, it will be “game set and match” for the union.

In order to avoid that predicament, employers should immediately start educating their employees on why inviting a third party, such as a union, into the work place would not make sense for their companies. In a sense, employers will need to begin a carefully planned education campaign for its employees on a continuing basis, much like the way companies now provide harassment training for its employees.

We will keep you posted on any further developments on this important legislation.
Attorney Advertisement
Client Alert is published by the law firm of Whiteford, Taylor & Preston, LLP.  The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney.  Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.  – Albert J. Mezzanotte, Jr., Managing Partner