The Employee Free Choice Act--It's Anything But

David Keene, II
September 29, 2008 — 2,310 views  
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Congress is considering the Employee Free Choice Act (“EFCA”), a bill that, if enacted, would be the first significant revision to the National Labor Relations Act since the Taft-Hartley Amendments in 1947.  To call this a “significant revision,” however, is an understatement—it is no exaggeration to state that enactment of the EFCA could be devastating.

The stated purpose of EFCA is to amend the NLRA “to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.”  Unions are counting on EFCA to invigorate union organizing efforts nationwide, which have been languishing for decades.  I have practiced labor law for ten years, having gone through initial organization efforts, first contract negotiations, strikes, decertification campaigns, etc.  The EFCA would be a boon to unions.  


I. Eliminating Secret Ballot Elections—A “solution” in search of a problem

There are two primary problems with the EFCA.  The first is that it effectively eliminates the right to a secret ballot election.  Union recognition would be based on a card majority, meaning that the National Labor Relations Board (“NLRB”) would certify a union’s status as the employee representative if a majority (50% plus one) of employees in the bargaining unit sign authorization cards.  Elimination of secret ballot elections will encourage unions to become more aggressive in future organizing, and to collect undated authorization cards right now in the hope that cards signed today may be dated and used to support a demand for card-check recognition later.  Since most union organizing manuals emphasize that card signing should be done in secret, companies may be faced with union representation before they have the opportunity to inform employees of the limits of collective bargaining.

The truth is that secret ballot elections work.  In the past ten years, unions have won more than 50% of all elections.  The NLRB’s election process establishes a fixed timeline—usually 30 days from determining whether there is sufficient interest to have an election to the actual election—and gives employers, unions, and employees adequate time to communicate facts and share points of view.  Without the opportunity for both sides to campaign, a lot of questions will go unanswered.

Why else is eliminating secret ballot elections so devastating?  It is much more difficult for an employee to refuse a face-to-face request to sign an authorization card than to vote his true choice in a secret ballot election.  Because union organizers can visit employees at their homes, and bring supporters with them, it becomes difficult to reject such a personal, in-your-face request.  The NLRB’s secret ballot election process protects employees from any undue pressure at the crucial moment when they are being asked whether or not they want to be represented by a union.  No one ever knows how the employee voted, unless he volunteers that information.  EFCA would strip away the secrecy of the process, subjecting the employee to the urgings of professional union organizers and pro-union coworkers in an unregulated atmosphere.

II. Mandatory Interest Arbitration—It’s certainly not in the employer’s interest

The second problem with the EFCA is its deadly impact on the collective bargaining process.  Under the EFCA, employers would be required to begin bargaining within 10 days of a union’s request.  This is almost laughable, as it takes the union at least that long to have its first post-certification meeting with employees and discuss what they hope to achieve at collective bargaining.

After that initial request, the parties have 90 days to reach a first contract, and, if it is not reached, either may request that the dispute be mediated by the Federal Mediation and Conciliation Service (“FMCS”).   This part is laughable—I have negotiated many first contracts, and it takes at least one year to create a collective bargaining agreement where one did not exist before.

Finally, if FMCS is unsuccessful at bringing the parties to agreement within 30 days, the dispute will go to arbitration, the results of which are binding for two years.

This development is truly loathsome.  What is interest arbitration, you might ask?  Interest arbitration is where a third party actually writes the terms of the parties’ collective bargaining agreement.  The employer and the union each provide witnesses and evidence to persuade the arbitrator of their bargaining position, whether it be for higher salaries, more holidays, etc.  It also cuts the legs out from under good faith bargaining.  The union will put forth outrageous contract demands that it knows will never be met, simply bidding its time before it gets to the real action—interest arbitration.

I have been through many interest arbitrations.  I have seen how unions negotiate when mandatory interest arbitration is looming—they don’t.  Additionally, there is usually no control over what the arbitrator decides.  For example, the arbitrator could: impose a no-subcontracting clause;write a broad successor and assigns clause requiring a purchaser of assets to assume the contract, eliminating the entire successorship issue;grant significant pay raises when the employer sought concessions;require the employer to participate in a defined benefit, rather than a defined contribution, plan;  establish overtime pay on an 8-hour day, and other premium rates (shift differentials, holiday pay, weekend work, etc.), and;inject seniority into the promotion and layoff/recall process, relegating merit to the dustbin and destroying the employer’s right to direct its workforce.

Finally, no one seems to have given any thought to what happens when this first contract expires.  What happens when there is no third-party available to take care of the union and its demands?  Labor unrest is a real possibility, as employers may take a hard-line approach in negotiations to achieve the terms and conditions they wanted two years earlier.  This could result in more strikes. 


III. A Laundry List of Other Problems

In addition to eliminating secret ballot elections and interest arbitration, the EFCA increases penalties for employers who commit unfair labor practices. For instance, an employer who unlawfully discharges an employee during an organizing campaign, or in the period between the union’s certification and approval of a first contract, would be liable for treble damages—triple backpay.  Other unfair labor practices during this period could bring fines up to $20,000 for each willful or repetitive violation.  Priority for preliminary investigation of alleged unfair labor practice violations by employers during organizing drives or the period of time between when a bargaining representative is first recognized and a collective bargaining agreement is reached.

The EFCA would require that the NLRB seek an injunction against employers upon a showing of reasonable cause that an employer discharged or otherwise discriminated, threatened discharge or otherwise threatened to discriminate, or otherwise significantly interfered with employee civil rights during an organizing campaign or first contract bargaining.


IV. The EFCA’s Current Status


The House of Representatives in the 109th Congress overwhelmingly passed the EFCA in the winter of 2007.  The bill passed the Senate by a vote of 51-48, but died in that chamber when President Bush threatened a veto.


V. Preparing for the EFCA’s Enactment

As an HR professional, you need to start preparing now for enactment of the EFCA, or a similar law.  Employers should, among other things:

Continue educating employees not to sign union cards and the “benefit” of union representation year-round. Train supervisors on identifying union campaign activities.Train supervisors how to establish good employee relations and effectively communicate.  Remember, supervisors are your first line of defense against unionization.Make sure your solicitation and distribution policies are current and legal.  Don’t wait until you hear rumblings of a campaign to revise a poorly drafted policy.  Consider—if you revise a solicitation and distribution policy in the midst of a union campaign, you have created grounds for an unfair labor practice.Prepare for “endless campaigns.”  With secret ballot elections, no representation petition can be filed within one year of an election.  This is called an election bar.  With the card check system, there will be no election bar.  HR professionals will have to remain diligent at all times.Uniformly enforce policies and discipline.  Playing favorites and allowing enforcement to slip only encourages union organizing.  Remaining diligent includes equal treatment for all. 

David Keene, II


David Keene, an associate in Baker Donelson's Tri-Cities office, concentrates his practice in the area of labor and employment law. Mr. Keene has experience in a multitude of labor and employment areas including negotiating collective bargaining agreements for both private and public sector employers; representing employers in grievance and issue arbitrations; representing employers in all matters, including elections and unfair labor practices, before the National Labor Relations Board and state labor boards; helping clients maintain union-free workforces; handling unemployment claims from initial applications for benefits through court appeals; counseling clients on a multitude of federal employment laws, including the ADA, FMLA, ADEA, and FLSA; litigating employment discrimination claims; and representing individuals against unions. Mr. Keene has been published in The Labor Lawyer, Labor Law Journal, and numerous other publications, and has taught seminars on a wide variety of labor and employment topics.