On March 10, 2009, the latest version of the Employee Free Choice Act (“EFCA”) was introduced into both chambers of Congress. The EFCA is legislation which purports to give employees more control in the election of a union at the expense of the employer’s right to keep his/her company union-free. Under the EFCA the National Labor Relations Board would certify a union as the bargaining representative, without directing an election, if 50% plus one member of the bargaining unit signs cards. This would be a direct change from current law which requires a majority vote in a secret ballot election in the event that a union first convinces more than 30% of the employees to sign authorization cards. Effectively, under the EFCA, unions would no longer risk certification through an election.
As initially drafted, the EFCA also imposed significant restrictions on bargaining in first-time contracts. Under the EFCA an employer would be required to begin bargaining no later than 10 days after receiving a written request to bargain from a newly certified union. If after 90 days the parties could not reach an agreement, the parties would be required to go to mediation. In the event that the parties cannot reach an agreement through mediation in 30 days, the case would be referred to arbitration which would result in a two-year binding contract. This is a significant change from current law which does not require any party to agree to any contract provision.
The EFCA also created mandatory penalties for willful and repeated violations of the National Labor Relations Act up to $20,000 per violation. This too, would be a significant change to the current law.
Although initially there seemed to be overwhelming support for passage of this legislation in the House of Representatives and the now filibuster-proof Senate, it is clear that the EFCA has fallen off Congress’s radar and even President Obama has indicated that the EFCA needs to be retooled before it could be passed by the Senate. The anticipated re-write would eliminate the card check provision (thereby maintaining secret ballot elections) but keep the expedited election schedule, mandatory interest arbitration and increased employer penalties for unfair labor practices. While the EFCA’s likely dilution has been viewed as a victory for employee and management rights advocates, even in its weakened form, these changes represent a significant change in labor law and should motivate employers to begin planning/implementing preventative measures to mitigate the law’s effects—(1) open employee communication and training; (2) supervisory training; (3) thorough review of all company policies and handbook; and (4) fix problem areas proactively, promptly and collaboratively.
If you have questions on how to enhance your company’s human relations and union prevention programs please contact:
Seth P. Briskin, Esq.
MEYERS, ROMAN, FRIEDBERG & LEWIS
28601 Chagrin Blvd., Suite 500
Cleveland, Ohio 44122
(216) 831-0042 Phone
(216) 831-0542 Fax