WORKPLACE LAW -
Proposed Law Regarding Employee Unionization
Question:
I have heard and read a lot of different things about the Employee Free Choice Act. Can you please explain the potential effects of this proposed law on large employers such as myself?
Answer:
The Employee Free Choice Act (EFCA) has not yet become law, but if it does there will be significant ramifications. In March of 2007, the EFCA passed in the House of Representatives. A few months later, in June of 2007, a filibuster in the Senate barred the consideration of the bill (which President Bush had vowed to veto). As a result, the bill has yet to become law. However, proponents of the bill believe that it will pass during the next congressional session because of President-elect Obama’s influence. In fact, President-elect Obama is an original co-sponsor of the bill, who believes that the choice to unionize should be left entirely to employees. There are several potential effects of the EFCA on both employers and employees.
If the EFCA becomes law, it will amend the National Labor Relations Act (“Act”) sections regarding union certification, collective bargaining, and enforcement. First, the union certification process will be streamlined in favor of union representation. Currently, under the Act, the National Labor Relations Board (“Board”) may certify a union as the exclusive representative of employees if the representative is elected by a majority of employees through a secret ballot election or by an authorization card check process. However, an employer or a substantial number of employees can force a secret ballot election if a question of representation exists.
The EFCA seeks to amend the Act so that the Board would be required to certify a union as the exclusive representative of employees without holding a secret ballot election if a majority of employees sign authorization cards. Such an amendment would take away from employers and employees the right to a secret ballot election. Opponents of the EFCA argue that electing the union through the card check process is an inherently unreliable indication of employee approval of union representation, as the signature cards are often presented to employees by union organizers and employees advocating union representation. The opponents also argue that the use of authorization cards as the sole means of electing union representation opens the door for coercion of employees, while a secret ballot keeps employee voting private.
The EFCA also seeks to amend the provisions of the Act which govern the collective bargaining process that takes place after Board certification. Pursuant to the EFCA, employers would be required to begin bargaining with the union within 10 days of union certification. Furthermore, if the employer and the union could not agree on the provisions of a collective bargaining agreement within 90 days after the bargaining begins, either party could request mediation conducted by the Federal Mediation and Conciliation Service. If an agreement still could not be reached after 30 days of mediation, the parties would be subject to binding arbitration. Under such arbitration, employees would lose their right to ratify the terms of the collective bargaining agreement for 2 years. Thus, opponents of the EFCA argue that this expedited system may in fact harm employees in the long run.
In addition to the certification and collective bargaining amendments, the EFCA also contains provisions that enhance penalties for, and speed up enforcement of, certain unfair labor practices. Specifically, the EFCA would amend the Act to strengthen enforcement of the sections prohibiting unfair labor practices during organizing drives in an attempt to deter illegal conduct. Employers who unlawfully terminate pro-union employees because of their stance would have to pay triple back pay to such employees. Furthermore, a $20,000 civil fine would be imposed on employers who willfully or repetitively violate the unfair labor practices sections of the Act, and the Board would be required to seek a timely injunction against the employer.
In totality, if enacted, the EFCA could have a significant effect on employers who wish to negotiate directly with their employees on issues such as salaries, benefits, and working conditions. Additionally, while the drafters of the EFCA seek to make unionization more employee friendly, the EFCA would in some instances prevent employees from exercising their preexisting rights. If the EFCA does in fact become the law, employers should contact their labor law attorney for compliance advice.
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