EFCA News Wire

For the past few months, Senate leadership has been managing expectations on the Employee Free Choice Act (EFCA), the bill backed by organized labor designed to make it easier to organize employees and negotiate first-time contracts. Senate leaders have been publicly bracing supporters of the bill to expect delay, given everything already on the Majority’s agenda. Even union leaders have downplayed expectations noting formal consideration of the bill is a moving target. Given these statements and the recent focus on healthcare, most observers have speculated that consideration of EFCA will slide to 2010.

And Franken Makes 60

Specter's Party Switch: Will He Support EFCA ?

Senator Specter Announces His Position on the Employee Free Choice Act

On Tuesday, March 10, the controversial Employee Free Choice Act ("EFCA") was introduced in both the U.S. Senate and House of Representatives. The bill (H.R. 1409, S. 560), which is sponsored by House Education and Labor Committee Chair Rep. George Miller (D-California) and Senator Tom Harkin (D-Iowa), would amend federal labor laws in several critical areas, significantly impacting how employers address union organizing activity.

 As has been reported widely in the media, EFCA allows unions to become employees' bargaining representatives on the basis of a "card check" process, thereby depriving employees of the right they presently have to vote in secret-ballot elections. A lesser-known, but equally important, provision of the bill mandates arbitration of initial collective bargaining agreements when the parties cannot come to agreement on their own. EFCA also provides triple back pay to employees who are the victims of employer unfair labor practices ("ULP's") during an organizing campaign or in the period leading up to a first contract, allows for civil fines upon employers of up to $20,000 per violation for willful and repeated ULP's committed during the same time period, and enhances the ability of the National Labor Relations Board to obtain injunctions in federal court against employers with respect to organizing campaigns or initial contract negotiations.

On February 19, two Florida legislators proposed an amendment to the state constitution that would override any attempt on the federal level to do away with secret-ballot union elections. House Majority Leader Adam Hasner (R-Delray Beach) and Sen. Garrett Richter (R-Naples) submitted a joint resolution (SJR 1908/HJR 1013) that calls for placing a constitutional amendment on the ballot that would guarantee a secret ballot for designations or authorizations of employee representation, as well as for elections for public office and public votes on initiatives or referenda. It is too early to tell what chances the amendment has of becoming law; much will depend on what happens in Congress with respect to the Employee Free Choice Act (“EFCA”).

Understandably, much of the discussion regarding Labor’s agenda in 2009 has focused on the Employee Free Choice Act (“EFCA”). There is another piece of legislation, however, that poses as much of a threat to union-free employers as EFCA. The Re-Empowerment of Skilled and Professional Employees and Construction Trades workers ("RESPECT") Act narrows the National Labor Relations Act’s (“NLRA’s”) definition of a “supervisor,” which essentially increases the number of employees eligible for union representation and decreases the number of employees whom an employer can use to campaign on its behalf in response to a union campaign.

Under current law, the obligation to bargain with a union only begins once the union is certified as the exclusive representative of a particular group of employees, called the bargaining unit. Once the union is certified by the National Labor Relations Board (NLRB), the legal obligation begins “to bargain in good faith” over the terms and conditions of employment for the bargaining unit employees.

Bargaining in good faith means that the parties have to meet at reasonable times and places, must be prepared for bargaining, must discuss and consider the other side’s proposals, and must respond to proposals. The obligation to bargain in good faith does not mean that either side must agree to any specific proposal, nor does it prohibit hard bargaining, or bargaining that seeks a reduction in the wages and benefits of employees. Rather, the obligation on each side is to engage in the bargaining process – the give and take of negotiations – in a good faith attempt to reach a deal. The government does not get involved in the particular terms set out in the agreement and the parties are left on their own to hammer out the best deal they can.

Under current law, Unions can only become the exclusive representative of employees if: (1) the employer chooses to voluntarily recognize the union and the union has proof of support from more than 50% of the employees; or (2) the union obtains more than 50% of the votes cast in a secret ballot election conducted by the NLRB.

Under either scenario, the union begins its campaign to by obtaining signatures to show that the employees want representation. These signatures can be on authorization cards or on petitions, but in either case the employee must sign and date the card or petition and indicate that he or she desires representation by the union.