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Unions Seek To Eliminate Elections

Since its enactment in 1935, the NLRA has protected employees from both union and employer coercion by requiring that all union representation elections be conducted by secret ballot. The EFCA proposes to eliminate employees’ right to a secret ballot election and would enable the National Labor Relations Board (“NLRB”) to force employees to submit to union representation based on a simple showing that the union was able to obtain “valid authorizations” from a majority of the employees in the bargaining unit through home visits, peer pressure, and any other means that cannot be proven to violate the law. Employees would no longer be entitled to hear the other side of the union story from their employers and would no longer be entitled to a secret ballot election, in which they may vote their conscience free from pressure or coercion. This radical and seemingly anti-democratic alteration of the law has prompted criticism from both sides of the aisle, including from such long-time union supporters as former Democratic Presidential Nominee George McGovern.

Federal Arbitrators To Dictate Terms And Conditions Of Employment

For decades, the policy of the NLRA has been to ensure that employers and unions bargain with one another in good faith but otherwise allow them to negotiate a collective bargaining agreement (“CBA”) at arms length. The EFCA would abandon this well-established policy with respect to the negotiation of the initial CBA, which is typically the most important contract in any employer-union collective bargaining relationship.

As written, the EFCA requires the employer and union to begin bargaining within 10-days of the union being certified (i.e., winning the election). If the parties have not successfully negotiated an initial CBA within the first 90 days of bargaining, either party may notify the Federal Mediation and Conciliation Service (“FMCS”) and request mediation. If mediation through the FMCS is not successful after 30 days, the FMCS must refer the dispute to an “arbitration board,” which will dictate the terms of an initial contract to be binding on the parties for 2 years.

The bargaining and mediation deadlines may be extended by agreement of the parties, but experience suggests that few unions will agree to any such extensions, particularly given that the arbitration board is likely to be filled with union-friendly arbitrators appointed by a Democratic President. As a result, unions will be able to take unusually strong positions during initial contract negotiations, knowing that they can force employers to arbitration before the “arbitration board,” if the employers do not agree to their demands. This aspect of the EFCA amounts to nothing less than the forced setting of the terms and conditions of employment by the federal government and has received surprisingly little attention in the popular media.

Enhanced Enforcement

The EFCA also makes significant changes in the enforcement of the NLRA with respect to unfair labor practices committed while employees of the employer were seeking representation by a labor organization or during the period between the certification of the union and the initial collective bargaining agreement (the “organization and bargaining period”): 

• Mandatory Injunctions. After a charge is filed, if the NLRB regional director has reasonable cause to believe that an employer has violated section 8(a)(1) (interference with employee NLRA rights) or 8(a)(3) (discrimination on the basis of union affiliation) during the organization and bargaining period, the regional director must seek federal injunctive relief under Section 10(l) of the NLRA. Under the current NLRA, such extraordinary relief is available only to address certain unfair labor practices that were deemed by Congress to be “inherently disruptive,” and include secondary boycotts, hot cargo agreements, and organizational or recognitional picketing. 

• Triple Backpay and Penalties. An employer who is found to have violated sections 8(a)(1) or (3) during the organization and bargaining period will be liable not only for backpay, but also for “2 times that amount in liquidated damages.” In addition, an employer who “willfully or repeatedly” commits such unfair labor practices could incur a civil penalty of up to $20,000 for each violation. Under the current NLRA, only reinstatement and back pay are available as remedies for such violations.

Rumors

On June 26, 2007, the EFCA stalled in the Senate when supporters of the bill were unable to obtain the 60 votes needed to invoke cloture and force a vote on the bill. (The final vote was 51-48 in favor of cloture.) There are rumors that the sponsors of the EFCA know that the lack of a secret ballot election is likely to be fatal to the EFCA even with the recent Democratic gains in Congress and that they intend to offer an amendment that would provide for a secret ballot election but shorten the period between the direction of election and the secret ballot vote to seven days. Such an amendment would remove the salient, wide-spread, and easily understood objection to the the elimination of secret ballot elections while still tilting the process in favor of the union by providing a very short campaign period. (The union knows it is going to seek an election long before the employer does and is thus better able to prepare for same prior to the direction of election.)

Implications

Whether the EFCA is passed as written, amended and passed, or stalled completely, it is apparent that pro-union policies and legislation are likely to become a hallmark of at least the next two to four years. As of November 2008, three of the five positions on the NLRB are vacant, meaning President-elect Obama will be in a position to appoint the majority of the NLRB immediately. Employers who have not already done so should develop a clear understanding of unions, what they would mean for their employees and operations, and the specific steps they will take in immediate response to a union campaign. Employers should also ensure that their managers and senior leadership are trained to to identify the early signs of union activity and the proper means for escalating and responding to same. In this connection, it is important for non-union employers to understand the rights the NLRA gives to all employees, regardless of whether they are part of a union. Finally, employers should take time to ensure that they understand the critical importance of maintaining open lines of communication with their employees and paying attention to employee issues before a union arrives on the scene.

Questions

The foregoing is not intended as legal advice. If you have specific questions regarding the Employee Free Choice Act, the National Labor Relations Act, unfair labor practices, or any other aspect of traditional labor law, please contact one of our attorneys.