Main Menu

Employee Free Choice Act Update

July 13, 2009

Debate over the proposed Employee Free Choice Act (“EFCA”) continues behind-the-scenes in the U.S. Senate.  This controversial measure, a high priority of organized labor, would change the National Labor Relations Act (“NLRA”) in significant ways that would greatly facilitate union organizing.  Among other things, EFCA would allow a union to be certified as the exclusive representative of employees by securing union authorization cards from a majority of the group; in a significant departure from existing law, the union would not be required to win a secret ballot election conducted by the National Labor Relations Board (“NLRB”).  In addition, if a newly-certified union is unable to reach a collective bargaining agreement, EFCA would require that the parties engage in mediation and, thereafter, binding arbitration to establish the terms of employment. 

While the fate of EFCA remains uncertain, it seems increasingly apparent that the version of EFCA eventually put to Senate vote will be significantly different from the original legislation.  Opposition to the controversial card check and mandatory arbitration provisions prompted Senator Tom Harkin (D-Iowa), the bill’s lead sponsor in the Senate, to commence compromise discussions with opposing Senators, including Arlen Specter (D-Pennsylvania) and Dianne Feinstein (D-California).  Although the Senators have declined to comment on the details of the discussions, it has become clear that several compromises regarding the card check and mandatory arbitration provisions are up for consideration. 

·          Expedited or “Quickie” Elections:  Proponents of EFCA argue in support of the bill’s card check provision that the campaign period preceding a secret ballot election provides an opportunity for employers to engage in abuses such as threats and coercion of employees in an effort to defeat the union in the election.  One compromise under discussion would retain the system of secret ballot elections but replace the proposed card-signing procedure with an expedited election process.  The current policy of the NLRB is to conduct an election within 42 days after filing of a union petition.  Various sources report that the Senators have considered election deadlines ranging between 7 to 21 days following the petition.  Proponents of this compromise contend that condensed election periods will ameliorate excessive employer pressure on employees while still preserving the secret ballot.     

·          Mail-in elections:  Another alternative to the proposed card check procedure is a “mail-in election.”  Under current law, NLRB elections are in most cases conducted on the employer’s premises, and in-person voting is required.  This measure would allow employees to vote using mail ballots rather than appearing in person at a polling site.  This compromise is intended to preserve the secret ballot while protecting employees’ voting privacy and reducing opportunities for both union organizers and employer representatives to exert undue influence on voters.  This approach, however, has strong critics on both sides of the debate.  Some employer-backed groups believe that mail ballots could expose the election process to greater fraud and misconduct, while some labor reformers believe that it would do little to prevent delays or mitigate unfair employer tactics prior to the election.

·          Granting union organizers more access to workers:  Another compromise intended to supplement an expedited or mail-in election would require employers to allow union representatives to campaign at the workplace.  Current law protects the right of employers to ban non-employee union organizers from entering company property.  This compromise would require employers to grant unions “equal time under identical circumstances” to meet with employees at the workplace.  This means, for example, that if an employer uses mandatory “captive audience” meetings to campaign against the union, the employer would be required to give union organizers access to the facilities for similar meetings.  Similarly, if an employer addresses workers during a lunch break, the employer would be required to allow union organizers to do the same.

·          Gissel Provisions: Yet another compromise being considered to address concerns about the proposed card check procedure is codification and expansion of the NLRB’s Gissel doctrine.  This doctrine, adopted by the NLRB and endorsed by the U.S. Supreme Court in the landmark case of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), allows the NLRB to certify a union solely on the basis of a card check when an employer has engaged in serious unfair labor practices that would make a fair election impossible.  This compromise would retain the secret ballot election procedure but expand the circumstances in which the NLRB could impose card check certification in the event of employer abuses.

·          Alternatives to Arbitration:  Under current law, once a union is certified as the employees’ representative, the employer and union are obligated to engage in good faith bargaining in an effort to conclude a collective bargaining agreement.  If negotiations reach impasse after good faith bargaining the employer has the right to unilaterally implement terms and conditions consistent with its last offer to the union.  As originally proposed, EFCA would require the parties to participate in mediation if no agreement is reached within 90 days and, if mediation is not successful, to engage in binding arbitration to establish the term of the initial collective bargaining agreement.  The mandatory arbitration proposal, which has attracted nearly as much criticism from employer groups as has the card check provision, has also been the subject of discussions regarding possible compromises.  One proposal would retain the requirement of mediation but without mandatory arbitration.  Another would provide for so-called “baseball arbitration,” in which each party submits only its last, best offer to the arbitrator, whose power is limited to choosing between those two proposals.  Lastly, as an alternative or supplement to mandatory arbitration, some proposals call for special remedies for undue delays in first-contract negotiations.  These remedies include extension of the time period during which the union is insulated from employee-led decertification attempts (which is currently one year), and reimbursement of the union’s bargaining expenses and attorney’s fees.

·          Enhanced Penalties:  Whatever version of EFCA eventually emerges will likely retain the current proposal for increased penalties imposed upon employers found guilty of engaging in illegal conduct during union organization or the negotiation of a first contract.  These penalties could include triple back pay for discriminatory discharge of union supporters, civil fines of up to $20,000, and mandatory injunctions.

What employers should do now:  With substantial Democratic majorities in both the Senate and the House, as well as the support of the President, it is likely that some version of EFCA will eventually become law.  Whatever compromises are required to secure passage, the upshot will be that it will be considerably easier for unions to organize and employers will have less of an opportunity to address with their employees the issues raised by unionization once organizing activity begins.  Consequently, employers who wish to remain union free should insure that their union awareness  programs are comprehensive and up to date; they should train their supervisors and managers, not only on good employee relations policies, but also on the techniques of lawful union avoidance programs and compliance with the requirements of the NLRA.  Employers should also consider implementing new employee orientation programs, and additional communications efforts with incumbent employees, to assure that all employees are fully aware of the significance of signing union authorization cards and the facts regarding the consequences of unionization.