Employee Free Choice Act (EFCA) - Card-Check May Be Out; Arbitration and Election Rules Favoring Unions May Be In

Posted on July 22, 2009 by Mike Underwood

EFCA, as introduced in Congress in February 2009, includes sweeping changes to the rules for union organizing. (Please read our earlier blogs for further discussions on EFCA.)  The two most controversial original EFCA provisions are: (1) card-check recognition, which would allow unions to demand recognition rights based solely on union cards that they can pressure employees to sign through face-to-face interaction; and (2) mandatory binding arbitration to resolve impasse in first labor contract negotiations. The card-check provision has been especially controversial because it would result in unions obtaining bargaining rights without a secret ballot election. No doubt sensing that the general public favors secret-ballot elections, a number of moderate Democratic senators have begun to pull back support for card-check recognition as EFCA nears debate in the Senate.

As expected, the waning support for card-checks has generated talk of compromise among Democratic senators in order to get some sort of labor law reform passed. The New York Times reported recently that some Democratic senators have persuaded their colleagues to drop card-check recognition from EFCA in order to get sufficient Democratic support so that they can withstand Republican opposition. With this compromise, it appears the Democrats have sufficient support to push EFCA through over any effort by Republicans to filibuster or otherwise get it off track. Although current attention in Congress on health care and the economy may cause EFCA to take a back seat until later this year, when EFCA does come to the floor, it now looks like the chances for passage are very good.

 

Before employers become too pleased about the apparent death of card-check recognition, consider the fact that the provisions for binding arbitration in labor contract negotiations will apparently remain in the bill. Just as concerning is the fact that compromise provisions being built into the “new” EFCA are designed specifically to give unions a much greater chance to successfully organize a company in an election campaign. The following are three provisions being touted as union-favoring election rules changes that will likely find their way into EFCA if card check-recognition goes out. 

 

1.         Quickie Elections

Reports are that the new EFCA will call for elections to take place in just five to 10 days after a union files a petition for election. A union can file a petition for election after obtaining cards signed by just 30 percent of an appropriate voting unit. Many union organizers are very sophisticated about running an “under the radar” campaign to get cards signed, keeping the campaign from management’s attention as long as possible. If a company is unaware that card-signing is going on or finds out too late, the company may face a union election in a matter of days. That would be completely inadequate time for a company to develop a fair and thorough communication campaign to educate employees before they vote. These quickie elections would likely cause a dramatic increase in the number of organizing campaigns that reach election and in the number of union wins. When you consider that the union win rate in cases that go to election is already more than 60 percent, labor law reform that will make it even easier for unions to win elections is reason for continued concern about EFCA.

 

2.         Union Access to the Property

Under current rules, outside union organizers have no right to insist on access to a company’s property during work time to lobby employees. The revisions to EFCA apparently will include some guaranteed access to company property for outside union organizers.

 

3.         Company Meetings with Employees

Under current rules, when an election is to occur, company representatives typically have meetings with workers to explain the company’s position and the realities of collective bargaining. Union supporters claim that company representatives routinely use these meetings to unfairly intimidate and threaten employees. In fact, in most cases, these company-run meetings are simply the employer’s opportunity to communicate its side of the story. Reports are that revisions to EFCA will make it illegal for companies to require employees to attend these meetings. This would be yet another concession to organized labor pressure designed to make it easier for unions to have success in organizing and harder for employers to communicate a fair and legal message about the company position.

 

Right now, there is very little “official” information about where EFCA is headed. However, it seems clear that even if card-check recognition is falling out of the deck, organized labor is still prepared to play a very strong hand for improving union organizing efforts in this country.
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Employee Free Choice Act Introduced in Congress; Potential Compromise Legislation Also Introduced

Posted on March 16, 2009 by Mike Underwood

The Employee Free Choice Act, or EFCA, was introduced in Congress on March 10, 2009. The bill, introduced as H.R. 1409 and S. 560, is identical to last year’s bill. On February 26, we discussed the Secret Ballot Protection Act (see post here), which was proposed by Republicans as a preemptive strike against EFCA and which would prohibit employers from recognizing or bargaining with a union that had not won a secret-ballot election of employees. Democrat Joe Sestak, Congressman from Pennsylvania, has also introduced legislation targeting the relationship between unions, employees, and employers. Rep. Sestak introduced the National Labor Relations Modernization Act (NLRMA) (H.R. 1355) on March 5, 2009. 

The NLRMA mirrors many of the provisions of EFCA but does not include one key provision: the NLRMA does not contain the card-check provision that would eliminate employees' right to choose a union through a secret-ballot election. The NLRMA does, however, contain EFCA’s increase of damages for employers who commit unfair labor practices, a provision similar to EFCA’s regulating the timeline for negotiating the terms of an initial collective bargaining agreement, and a requirement that the parties submit to binding arbitration if they are unable to reach agreement. The NLRMA also contains a novel section—not included or addressed in EFCA or SBPA—which requires employers, following the setting of an election date, to notify unions of any campaign activity they intend to undertake and to allow unions equal access to employees.

 

Although EFCA is currently in the nation’s spotlight, there is considerable discourse among the public and Congress about the appropriateness of its card-check provision. If Congress becomes convinced that a card-check provision is not the right way to go, NLRMA or some other compromise bill might provide the consensus necessary to pass some sort of labor reform legislation. One thing seems clear. In order for any compromise to get the support or organized labor, it will have to include some means to make it easier for unions to organize workers and some provision for binding dispute resolution when bargaining a first labor contract. These are the things considered by unions to be key to their goal of increased union representation, a goal supported by the White House, by union supporters in Congress, and by the newly appointed Secretary of Labor. Employers should begin now to plan and take steps to prepare for what is certain to be a very concerted increase in union organizing activity.

 

Among the essential steps are manager training, designed to make managers especially aware of the likely changes in the law, but more important to make them aware of the specific arguments that are used by union organizers to get cards signed and the sort of manager behavior that will make it more likely those union arguments fail. Employers should also undertake a concerted review of policies and practices to be sure that they have in place those rules that make it more difficult for union organizing to succeed and more important, those policies that demonstrate to employees a commitment to effective communication, fundamental fairness, and genuine worker involvement.

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After a Short Lull, the Employee Free Choice Act Is Back in the News--As Is the Secret Ballot Protection Act

Posted on February 26, 2009 by Jenni Edwards

The chatter surrounding EFCA, or the Employee Free Choice Act, quieted down in mid-December, but EFCA is back in the news. 

Yesterday, President Obama’s nominee for his administration’s Secretary of Labor, Hilda L. Solis, was confirmed by the Senate. Secretary Solis was a co-sponsor of the Employee Free Choice Act when she was serving as a congresswoman from California. (See our prior post on Secretary Solis here.)
 

Today was also a big day for EFCA-watchers. Economists organized by the Economic Policy Institute, a progressive think tank, signed a public statement lauding the benefits of EFCA, which they claim would even the playing field between employers and workers in union organizing campaigns. The statement claims that the enactment of EFCA is “a critically important step in rebuilding our economy and strengthening our democracy.” Click here to see the statement in its entirety.

 

In an attempt to support the rights of employers and of employees who would value the chance to vote in a secret-ballot election, Republicans proposed the Secret Ballot Protection Act (SBPA) today as well. Previously introduced as S. 1312 and H.R. 866 in 2007, the SBPA is a preemptive strike against EFCA. SBPA would amend the National Labor Relations Act so that employers may not recognize or bargain with a union that has not been selected by a majority of employees in a secret ballot election administered by the National Labor Relations Board. Any employer who did recognize or bargain with a union that had not won a secret-ballot election of employees would be guilty of an unfair labor practice. The SBPA would also hold unions accountable for causing or attempting to cause an employer to recognize or bargain with a union that had not been democratically elected by employees. 

 

The SBPA is simply unlikely to pass—it has just 101 co-sponsors in the House and 16 in the Senate—but the bill’s re-introduction will help ensure that the debate about EFCA, both in Congress and in the media, remains two-sided. 

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Election Results - Immediate Workplace Issues

Posted on November 6, 2008 by Mike Underwood

Of course, no one can be certain of the exact workplace effects of Tuesday’s Presidential election results. But, at least one major change in employment law is pretty certain – and it is a change that all employers, large and small, in all industries, should be planning for now.

President-Elect Obama has stated clearly his support for the proposed Employee Free Choice Act (EFCA). His election, together with additional Democratic seats picked up in the Senate and Congress, make the passage of EFCA in 2009 a very strong likelihood. That will mean the most dramatic change in labor law in this country in decades.

As a reminder, there are two significant provisions of the EFCA: First, unions will be able to demand bargaining rights based solely on cards that they can pressure employees to sign face-to-face. The protection of a secret-ballot election will be taken away. Second, if labor negotiations between a union and employer for a first contract reach impasse, an outside arbitrator will dictate the terms of that key first contract.

If EFCA passes, you can be certain that unions will launch aggressive card-signing campaigns. It is likely that employers of all sizes and in all industries, including service, retail, manufacturing, and white collar industries, will be targeted. Small- to medium-sized businesses will be especially vulnerable because union organizers may be able to get a majority – or close to a majority – of the cards signed quickly before the employer is able to react. 

So what should companies do now? The most effective defense against a union card-signing campaign is cultivating a workforce where people are not inclined to sign a card. That means promoting management behavior and policies that make the arguments for card-signing fall on deaf ears. The prudent employer will not wait and see whether EFCA becomes law. That may be too late. The kinds of management behavior and policies that defeat union organizing cannot be put in place overnight. 

A solid preparation plan for this potential sweeping change in labor law includes at least the following steps:

  • An effective defense starts and ends with appropriate management behavior, so a program to reinforce management training about the sorts of things that support union organizing should be done now. Managers should be instructed about what might make an employee susceptible to a card-signing effort and what manager conduct will make it more likely an employee will “just say no” if asked to sign.
  • Re-visiting and evaluating wages and benefits to assure that they are competitive is another means of defense.
  • Prudent employers will also develop sound workplace policies that promote employee involvement and an active voice for employees in workplace matters.
  • Finally, making certain that managers are aware of the risk of union organizing and understand what can be done legally in response to organizing will also help employers prepare for EFCA.

A commitment to these steps now will be time well spent, regardless of what happens with EFCA. The very same steps that make a company strong against union organizing also promote fundamentally sound management behavior, consistent and fair treatment, and improved employee morale.
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