While there were those who hoped the Democrats would delay pressing for the Employee Free Choice Act (EFCA), on March 10, 2009 those hopes meet reality, when EFCA was introduced in both the House of Representatives and the Senate (H.R. 1409 and S. 560). Since this same bill passed the House of Representatives last year by a wide margin, and President Obama has expressed strong support for EFCA, the battle ground will be in the Senate. We can expect a bruising political battle, since EFCA, if passed, would dramatically ease the unionization process and thus result in a substantial increase in union membership – a critical union objective since union membership has been steadily declining. EFCA would also significantly change the negotiation process wherein the union and employer negotiate a collective bargaining agreement, which sets the wages, benefits and rights of the workers.
There are three components to EFCA that will negatively impact employers to a significant extent.
1. Union Recognition Process
Under EFCA, the secret ballot election process will be effectively replaced by “card check” recognition. That is, if a union obtains the signatures on authorization cards from 50% plus one of employees in an appropriate bargaining unit, and turns such cards over to the NLRB, the union will be certified as the majority representative of such employees. Thus, if union organizers or co-workers can go to employees’ homes, or corner them at work, and bully 50% of them into signing cards in favor of the union, the union must be recognized and accepted by the employer. Peer pressure by a few strong willed workers can easily result in union recognization, if the secret election is eliminated.
2. Binding Third Party Interest Arbitration Will Be Imposed Upon Any Employer Not Reaching Agreement On A First Union Contract Within 120 Days Of The Beginning Of The Bargaining Process
Currently, if a union is certified, an employer still has some control over its business operations through the collective bargaining process. This is because, in collective bargaining, an employer by law may always refuse to agree to unreasonable, costly, or unproductive union bargaining proposals. If the employer and the union disagree, over one or more contract terms, the union’s principal recourse is to strike and/or picket the employer, and the employer may, in turn, continue to operate using supervisors, managers, or replacement workers, or even lockout. Under EFCA, an employer’s right to say “no” to union wage, benefit, or working condition demands is removed. Instead, a “neutral” arbitration panel is appointed by the Federal Mediation and Conciliation Service to decide the terms of all disputed items of the parties’ first contract if such a contract is not reached within 120 days after the beginning of the bargaining process. Mediators are know to split the baby in half, even if one side’s demand is outrageous.
3. Increased Penalties Against Employers For Unfair Labor Practice Violations
Under the National Labor Relations Act, employers are now prohibited from threatening to discharge or discharging employees for engaging in protected union activities, or from interfering with, restraining, or coercing employees in the exercise of their rights under the National Labor Relations Act. The current remedy for such a violation is that any discharged employee would be reinstated and receive full back-pay for the period of time he/she may have been terminated, with interest. In addition, injunctions against alleged employer illegal activity are rarely sought or granted. Under EFCA, any employee found to be unlawfully terminated while employees of the employer are actively seeking representation, or after recognition is granted until a first contract is entered into, would receive full back-pay plus two (2) times that amount as liquidated damages. In addition, any employer found to have willfully or repeatedly committed unfair labor practices during a union organizing campaign or during the period before a first contract is entered into would be subject to a civil penalty not to exceed $20,000 for each violation. Finally, injunctive relief would be readily available where unfair labor practices were alleged to occur during a union organizing campaign or after recognition is granted but before a first contract is entered into between the employer and the union.
If you have any questions on EFCA, you can e-mail Lawrence P. Postol with your questions at Lpostol@seyfarth.com.
