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Employee Free Choice Act Introduced in Congress

March, 18 2009

On March 10, 2009 the Employee Free Choice Act (EFCA) was introduced in Congress -- in both the House of Representatives and the Senate. The bill has three components. It would require the National Labor Relations Board (NLRB) to certify unions that submit a petition showing they have received authorization cards from a majority of the employees in a proposed bargaining unit. The bill also seeks to “facilitate” an initial collective bargaining agreement by requiring non-consenting parties to submit the disagreement to an arbitration panel under rules to be determined by the Federal Mediation and Conciliation Service (FMCS). Finally, the bill increases penalties on employers – but not unions – that engage in unfair labor practices during an organizing campaign or during negotiations over the initial collective bargaining agreement.

Card-Check Certifications

One of the most widely-reported provisions of the bill is the “card-check” provision. Under current law, an employer can voluntarily agree to recognize a union as the sole bargaining agent of its employees if the union presents the employer with signed authorization cards from a majority of the employees. However, the employer may also insist on a secret-ballot election to be conducted by the NLRB. EFCA would eliminate card-check recognition as we know it today and make it mandatory.

If passed in its current form, the legislation would effectively end secret-ballot elections in virtually all cases. Elections will only be held if the union chooses to file a petition for election before receiving authorizations from a majority of employees. Today, unions normally gather authorizations from well over a majority of employees before requesting certification.

Interest Arbitration for Initial CBA

Following certification of a union, the employer and union generally meet to negotiate over the terms of a collective bargaining agreement (CBA). While good faith negotiations are required, neither party is required to agree to another party’s terms. Current law also provides that either party can call for the assistance of the FMCS to mediate an agreement. However, if the parties reach impasse, the employer may generally implement its final offer.

EFCA would alter the landscape significantly. Under the proposed law, either party may seek mediation from the FMCS after 90 days of bargaining if no agreement has been reached on a CBA. If there is still no agreement 30 days following the request for mediation, the FMCS must submit the dispute to an arbitration panel. Under current law, it frequently takes at least a year to negotiate a first agreement, when the parties are even able to agree on a contract. The arbitration panel would determine an agreement for the parties and impose it on them for two years.

Increased Penalties for Unfair Labor Practice Charges

Current law forbids employers and unions from engaging in certain unfair or coercive practices during organizing campaigns, negotiations for a CBA, and in other instances. The EFCA bill would increase the penalties on employers – but not on unions – who engage in unfair labor practices (ULP) during an organizing campaign or negotiations for an initial CBA. Specifically, the bill provides that any employee who is awarded back pay by the NLRB, would receive three times that amount as damages.

In addition to the back pay penalty, the law imposes a civil penalty for employers who “willfully or repeatedly” engage in ULPs during organizing or initial bargaining. The penalty is to be assessed by the NLRB and may be up to $20,000 per violation. No similar penalty is included in the law for violations by unions.

You may obtain a copy of the bills here: (House Version; Senate Version).

EFCA Introduction Follows Introduction of Secret Ballot Protection Act

In February, Republican members of Congress introduced the “Secret Ballot Protection Act of 2009” in both the House and Senate. These bills propose to require that the NLRB conduct a secret-ballot election in all cases occurring after passage of the bill. The text of the bill is available here: (House Version; Senate Version).

Bill to Give Collective Bargaining Rights to Public Safety Employees Also Filed in House

Another bill has been filed in the House that would require states to allow public safety employees to bargain collectively with public employers. Called the Public Safety Employer-Employee Cooperation Act and filed in January, the bill provides that police officers, firefighters and emergency management services personnel must be allowed to organize and bargain collectively with their public employers. Employees may not lawfully strike, nor may employers lock out employees. While some states provide for collective bargaining in the public sector (which is currently not federally regulated), South Carolina public policy forbids public sector collective bargaining. The bill would change the law in South Carolina.

In addition to requiring collective bargaining, the bill would empower the Federal Labor Relations Authority (FLRA), which currently administers the labor laws as they apply to federal employees, to issue regulations to determine if states are complying with the law and to enforce the law against non-complying public employers. The bill also requires the FLRA to provide for interest-based impasse dispute resolution mechanisms (such as interest arbitration) which could impose wages, hours and working conditions on political subdivisions and the states.

A copy of the bill is available here.

What Does This Mean for Employers?

Getting EFCA passed is at the top of the legislative agenda for unions. The President has also stated that he wants Congress to pass EFCA, and as a Senator, he supported the 2007 version that stalled in the Senate. EFCA has enough support to pass the House again and may have enough support to get through the Senate in some form. Accordingly, employers need to be prepared for some form of the bill to become law. It is also quite possible that the Public Safety Employer-Employee Cooperation Act may pass in some form. This means public employers that have not previously had to be concerned with organizing or collective bargaining may have to get up to speed in a short time.

Under the card-check certification that EFCA contemplates, employers will have already lost the campaign if they wait until they are presented with authorization forms to start educating their managers and employees. Employers need to ensure that their managers are trained to know the signs of an organizing drive by a union. Employers should also be sure that their managers know what they can and cannot do and say in response. Employers cannot lose a campaign that never occurs. Employees seek out unions because they are discontent or feel undervalued. Employers can help keep their workplaces union-free by ensuring that their policies and practices respect the dignity of their employees and by being tuned into and responsive to employees.

If you have any questions about how the proposed legislation may affect your organization, or if your organization is considering management training for its supervisors, please contact us.

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