Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

would try to make union elections more fair by sharply limiting the time between organizers' declaration that they have enough support to call an election and the day of the vote, to reduce the potential for employer intimidation. Organizers would also be guaranteed access to workers if employers held mandatory anti-union meetings on company time. And the penalties for employers who break labor law rules would be triple what they are today.

As for the equally contentious arbitration provision, the amended bill would still impose forced government arbitration if the parties cannot agree to the terms of a first contract within a specified time period, but would establish a “last best offer” model for final resolution. Under this approach, the arbitrator chooses between the two parties’ contract proposals, rather than exercising unfettered discretion on contract terms.

While on the surface these amendments appear to temper some of the more controversial terms that have been anathema to business interests, the changes are not drastic enough to attract wide-spread support within the business community, most of which is opposed to EFCA in any form and in particular is opposed to first contract arbitration. In fact, this version of EFCA – unlike the original bill – would provide union organizers with unprecedented access to the workplace. While the suggested bill would preserve the representation election process, the shortened election period would limit an employer’s ability to present its position to employees so that employees can make a fully-educated decision on unionization having heard both sides.

Despite Specter’s claims that a deal has been reached that would satisfy organized labor, AFL-CIO Secretary-Treasurer Richard Trumka – who was elected AFL-CIO President on Wednesday – has stated that the card check provision is still on the table. Therefore, it is still unclear what the final version of EFCA will look like at this point. It is also unclear whether there are enough votes in the Senate today to break a filibuster in light of the seat vacated by the death of Senator Kennedy and the continued absence of Senator Byrd (D-WV), even if the modified bill could attract the support of moderate Democrats (some of whom to date have opposed the passage of EFCA).

As for Specter’s estimated timeline for the measure’s passage, it is unlikely that any labor law reform bill will receive serious consideration until after Congress has dealt with healthcare reform. While President Obama reiterated his support for EFCA during the AFL-CIO convention, his remarks on that issue were brief., choosing instead to focus his speech on healthcare reform and job creation. It is possible, however, that organized labor will press for a Senate vote by the end of the year if it feels that the political climate for EFCA will worsen in 2010 or if labor wants EFCA to be a central campaign issue in the 2010 elections.

While the card check provision has received the most negative publicity, talks of an EFCA “compromise” have not addressed the mandatory arbitration clause, which would be equally if not more troubling for businesses. Under the terms of this provision, if parties cannot agree to the terms of a first contract within 120 days after bargaining commences, the union can submit the matter to mandatory, binding arbitration. The decision of the arbitrator as to terms of employment would be in effect for two years. Commentators have criticized these provisions on the grounds that the 120 day limit is unreasonably short, that they will encourage posturing for arbitration rather than true bargaining, they ultimately substitute the judgment of a government-appointed arbitrator for a bargain between the union and the employer, and that arbitrators are particularly poorly equipped to decide the many complex contract language issues that arise in bargaining a first contract.

Also not mentioned in The New York Times article is any revision to the EFCA clauses that would impose stiffer penalties on employers who are found to have committed unfair labor practices during organizing campaigns. Some believe these enhanced penalties are an attempt by organized labor to discourage companies from effective election campaigning.

The impetus for revising EFCA is likely the fact that despite their 60-vote majority, the Democrats in the Senate cannot muster the votes necessary to prevent a filibuster of EFCA in its current form, given that Senators Kennedy and Byrd, staunch labor advocates, may be absent for health reasons. Moreover, a number of Democratic Senators have voiced concern over the bill, particularly the elimination of the secret ballot union representation election process. With the card check section gone, EFCA supporters hope that those who opposed the legislation because of that concern will vote for cloture when/if the bill reaches the Senate floor. Other compromise changes to the bill have also been proposed, and at this time it is impossible to know in what final form, if any, it will reach the Senate floor. Although union supporters have been pushing for a vote before the August recess, the Times reports that with healthcare reform dominating lawmakers’ time, EFCA – in whatever incarnation – will not likely be put to vote until September at the earliest.
 

An article at Politico claims that some of Harkin’s fellow Democratic senators who oppose EFCA as written say they have been left out of any compromise talks. Thus, even if an EFCA alternative is introduced, it is unclear how many backers such a bill would have.

In its current form, EFCA would permit the National Labor Relations Board (NLRB) to certify a union as the employees’ exclusive bargaining representative based on a majority of signed authorization cards, potentially eliminating the secret ballot process. This card check provision has given a number of lawmakers pause, including many Democrats.  Sen. Specter – the only (former) Republican to vote for cloture on this bill when it was introduced during the last Congressional session – cited this provision as the reason he would not support EFCA this time around. Although no details on a possible compromise have been released, it is believed that in order to regain Sen. Specter’s backing, the card check provision would have to be significantly amended and/or eliminated.

Other controversial components of EFCA that have aroused the opposition of many business groups include a provision mandating binding arbitration to determine the terms of a first union contract if the parties do not reach agreement on their own after 90 days of bargaining and 30 days of mediation. Business groups have made clear that this clause is as problematic, if not more so, than the card check provision. The bill also would impose harsher penalties on employers that commit unfair labor practices during organization drives. Stay tuned for any new developments.

We sort of have a bill that talks a lot about majority signup and nothing about the problems of the election system. . . That was probably a decision made in the House to have the same bill come up and potentially pass the same bill – which is not going to be a logical way to follow through now that we know . . . what the situation is.

There has been speculation for weeks whether organized labor would continue to push its “no compromise” position on EFCA in hopes of having a better outcome after the 2010 elections, or abandon EFCA in its current form and push for a compromise bill now that would reform rather than displace the election process. Weighing into that debate, Stern suggested that union election reform could take place without eliminating the secret ballot, and that unions should back such legislation without holding out hope that the 2010 election will result in a larger Democratic senate majority that could be more receptive to EFCA. Stern also acknowledged that President Obama has not made EFCA a legislative priority, and therefore cannot be counted on to rally the 60 votes needed to end an inevitable filibuster.

Stern appears to be the first union leader to publicly concede to EFCA’s slim chance of passage and to support alternative legislation. Much of the business community continues to oppose EFCA in any form, including any compromise, arguing among other things that union success rates in elections under current law demonstrate that there is no need for union election reform.
 

Specter’s position on this issue is significant, as he was the only Republican senator to join with the Democrats on the cloture issue when this bill was first introduced in 2007. Back then, the proponents of the measure – commonly known as the “card check” bill – were nine votes short of avoiding the inevitable filibuster. EFCA supporters were more optimistic this year, given the Democratic gains in Congress and support by a President who co-sponsored the original bill. Despite these gains, however, Democrats still seem to lack the 60 votes needed to invoke cloture and therefore need the support of at least one Republican senator to keep the bill alive (assuming that the Democrats support the bill). Specter’s change of heart is no doubt a harbinger of opposition to come within Republican – and perhaps Democratic – ranks. Specter’s suggestion to amend the NLRA in lieu of supporting EFCA strongly suggests that he might be amenable to a compromise measure, such as the National Labor Relations Modernization Act or a proposal announced by some major retailers several days ago (see below) or some other compromise.

Specter himself suggests 12 amendments to the NLRA on his website. His proposals include establishing a timetable for holding a union election and ensuring the onset of bargaining following an election. He also proposes making it an unfair labor practice for both unions and employers to visit employees’ homes without prior consent during an election campaign, for employers to hold “captive audience” speeches unless the union has equal time to do so, and for both sides to engage in campaign-related activities within 24 hours prior to an election. Stiffer penalties are also proposed for both union and employer violations of the NLRA during an election campaign. In place of binding arbitration in the event a first contract is not reached, Specter proposes mediation after 120 days. A more stringent Board review process is outlined in the event allegations are made that a party is not negotiating in good faith. The proposals also include an order to impose injunctive relief, costs and attorney’s fees if either party is found to be in bad faith, engages in harassment, or causes unnecessary delay in the negotiation process. The proposal suggests modifying the NLRA to give courts broader discretion to impose a Gissel (forced union acceptance) order on a finding that the environment has deteriorated to the extent a fair election is not possible.

Some of these amendments are similar to suggestions embodied in a compromise measure proposed by three major corporations this past Sunday. During a press conference, executives of Starbucks, Costco, and Whole Foods suggested ideas for a compromise measure. Known as the “third way,” this proposal would maintain an employer’s right to demand a secret ballot union election and omit the provision in EFCA mandating binding arbitration. This compromise would, however, keep the stiffer penalties outlined in the bill should an employer commit unfair labor practices before union elections or refuse to engage in collective bargaining. The compromise similarly strengthens proposed penalties for union violations, and would make it easier for employers to call elections to decertify a union. Additionally, the “third way” compromise would give unions equal access to workers in regard to captive audience speeches before union elections.
 

Specifically, the U.S. Chamber and the USCIB assert that these provisions “are inconsistent with the principles of freedom of association and effective recognition of the right to collective bargaining as set forth in the 1998 ILO Declaration on Fundamental Principles and Rights at Work (1998 Declaration).” According to the letter, the United States is bound by the 1998 Declaration and its principles are cited in U.S. legislation and international trade agreements. International law favors secret ballot elections “because the risk of reprisal is significantly diminished where workers can express their sentiments in the secrecy of the voting booth . . . even if the reprisal comes from those who might support the union rather than those who oppose it or the employer.”

Additionally, the letter argues that EFCA’s proposal to impose compulsory arbitration is disfavored by the ILO, as doing so interferes with the collective bargaining process by creating a disincentive to voluntarily reach an agreement. If a party becomes dissatisfied with the negotiations, the letter claims, a party can unilaterally disengage from the process and allow the arbitrator to set the contract’s terms. 

As authority for its position, the letter cites an international law journal article by Stefan Jan Marculewicz, Elimination of the Secret Ballot Union Election and Compulsory Arbitration Under the Employee Free Choice Act – A Violation of Fundamental Principals of International Labor Law, which concludes that:

. . . international scrutiny of Sections 2 and 3 of EFCA may well result in a recommendation that the United States modify its laws to make them conform to established international labor law principles. The United States has been a strong proponent of such principles at home and in its own dealings with other nations. Accordingly, the United States Congress should take care to avoid changes to the NLRA that so clearly contradict fundamental principles of international labor law.

Whether this letter will convince lawmakers to abandon EFCA or at least modify its terms remains to be seen. This letter was sent the day after a Rasmussen Reports poll indicated that Sixty-one percent (61%) of Americans say it is fair to require a vote by secret ballot if workers want to form a union.

The version of EFCA introduced today is believed to be identical to that introduced in the 110th Congress two years ago. The most contentious aspect of this bill is the “card check” provision, which enables the National Labor Relations Board to certify a union as the employees’ exclusive bargaining representative based on signed authorization cards only. No longer will a secret ballot election be required. Republican lawmakers had introduced legislation in both the House and Senate recently attempting to preserve the employees’ right to a secret ballot election.  Last week, a Democratic lawmaker introduced a modified version of EFCA called the National Labor Relations Modernization Act (H.R. 1355) which, while similar, did not include the card check provisions contained in EFCA. The introduction of the Secret Ballot Protection Act (S. 478; H.R. 1176) is what may have spurred the introduction of EFCA earlier this session than what had until recently been anticipated.

The mandatory binding arbitration provision in the event a first contract cannot be reached has not been as widely publicized as the card check provisions, but is equally – if not more – controversial. Also included in the bill are tougher sanctions against employers if they are found to be in violation of the National Labor Relations Act (NLRA).

As expected, EFCA will be considered in the Senate first, as support there is more tenuous. While many conservative Democratic lawmakers in the House have begun to voice their opposition to EFCA, its passage in the lower chamber is virtually guaranteed. It is more questionable whether EFCA in its current, un-amended form, will be able to obtain sufficient backing in the Senate. Recently, Sen. Claire McCaskill (D-Mo.) acknowledged that there may not be enough votes to invoke cloture and avoid a filibuster. Given the focus on the economy and the lack of overwhelming support, EFCA is not expected to sail through Congress as organized labor had predicted following the 2008 election, basking in the glow of the Democratic gains in both Houses of Congress and the White House. However, when introducing this legislation, Sen. Harkin claimed that there is no erosion of support among Democrats for EFCA, and that “[b]y the time we bring it up, we’ll have our 60 votes.” Time will tell.

For a more in-depth analysis of EFCA, see the Littler Report: The Employee Free Choice Act: A Critical Analysis.

Certain provisions of the NLRMA mirror those of EFCA. Section 3 of this bill, “Strengthening Enforcement Against Intimidation of Workers,” lays out stiffer injunctive and civil penalties for employers that commit unfair labor practices (ULPs). These penalty provisions are lifted verbatim from EFCA’s Section 4, “Strengthening Enforcement.” In essence, employers that commit ULPs during the organizing period are required to award employees back pay in addition to twice that amount as liquidated damages. Moreover, an employer that willfully or repeatedly commits ULPs is subject to a $20,000 per violation penalty.

Section 2 of the NLRMA outlines a process for preventing excessive delays in the drafting of collective bargaining agreements. This section parallels the one contained in EFCA, laying out a strict timeline for bargaining the initial labor agreement with provisions for mediation and mandatory, binding arbitration; however, this bill is slightly less stringent and expands the timeline for bargaining and mediation before arbitration comes into play For instance, this provision applies to employers with at least 20 employees, a limitation not found in EFCA. Both bills require the union and employer to initiate collective bargaining within 10 days of receiving a written request. Under the new bill, if the parties have not reached an agreement after 120 days of bargaining, either party can request the appointment of an arbitration panel to assist in mediation. Under EFCA, the parties could request mediation after only 90 days of bargaining. In the new bill, if the parties are unsuccessful in reaching an agreement after 120 days from the date mediation is requested (versus 30 under EFCA), the parties would be forced into binding arbitration. Thus, under EFCA, arbitration could be required in as little as 120 days after bargaining is requested; whereas NLRMA provides up to 240 days before arbitration can be required. The arbitrator’s ruling on the terms of employment would be in effect for only 18 months under NLRMA, as opposed to EFCA’s 2-year contract.

A section in the NLRMA that does not appear in EFCA is “Equal Access to Labor Organizations Prior to Elections.” This section requires an employer – after an election date has been set – to notify the union of any campaign activity it intends to undertake, and allow the union equal access to present its side. Specifically, this new provision reads:
 

(1) Not later than 30 days after the Board shall have directed an election, the employer shall notify the representative designated by the employees under subsection (a) of any activities the employer intends to engage in to campaign in opposition to recognition of the representative, including any meetings with individual employees or groups of employees, any announcements to employees, any signs to be displayed at the place of employment, and any literature to be distributed to employees, and shall provide the representative with equal access to the place of employment to campaign in favor of recognition of the representative, including the opportunity to hold an equal number of meetings with individual employees or groups of employees, and an opportunity to make announcements, display signs, and distribute literature, under the same terms and conditions that the employer engages in such activities.

(2) As used in this subsection, the term `campaign' means any activity undertaken to persuade employees to vote for or against representation in an election directed by the Board, but shall not include any interference with, restraint or coercion of, or discrimination against employees in violation of paragraphs (1) through (3) of section 8(a).

Violations of this section would be considered an unfair labor practice subject to injunctive and monetary relief.

Given the intense focus on EFCA, it is not likely the National Labor Relations Modernization Act will receive serious consideration at this time. However, if a movement emerges in Washington to craft a middle-of-the-road compromise to EFCA, it is entirely possible that the National Labor Relations Modernization Act, or something similar, could be considered as a more palatable replacement bill.
 

EFCA would make it easier for unions to organize employees, as it enables a union to be certified as an exclusive bargaining representative based solely on its collecting a sufficient number of authorization cards from employees (the “card check” provision), and without being required to win a secret ballot election conducted by the National Labor Relations Board (NLRB). Equally controversial is a provision of the bill requiring mandatory arbitration of a first contract if the union and employer cannot agree to contract terms within 90 days after they begin bargaining. EFCA also increases employer penalties for violations of the National Labor Relations Act (NLRA). (For more information on EFCA, see Littler’s Q & A with Bob Battista)

Organized labor has launched an unprecedented campaign promoting EFCA’s introduction and passage. Earlier this week, the AFL-CIO’s Executive Council, meeting in Miami, touted the passage of EFCA as its main priority. In video-taped remarks, President Obama – who co-sponsored EFCA when it was first introduced in 2007 – voiced his support for this bill, and seemed confident of its passage. In his statement Obama reiterated his support for organized labor in general, and EFCA in particular:

I do not view the labor movement as part of the problem. To me, and to my administration, labor unions are a big part of the solution. We need to level the playing field for workers and the unions that represent their interests – because we cannot have a strong middle class without a strong labor movement.

The truth is, the road ahead will not be easy.  . . .  And as we confront this crisis and work to provide health care to every American, rebuild our nation’s infrastructure, move toward a clean energy economy, and pass the Employee Free Choice Act, I want you to know that you will always have a seat at the table. 

Secretary of Labor Hilda Solis made her first public speech as an official member of Obama’s cabinet at this Executive Council meeting. She criticized what she perceived as the Department of Labor’s inaction towards worker rights during the Bush administration, and declared: “there’s a new sheriff in town.” She also vowed to enforce EFCA – which she, too, co-sponsored in 2007 – if enacted.

At the conference, the AFL-CIO described how it is ratcheting up its lobbying efforts to secure EFCA’s passage. Such efforts include a massive letter-writing campaign aimed at Sen. Arlen Specter (R-Pa), the only Republican senator to support the bill during the 110th Congress. Specter and a growing number of others in Congress have been noticeably non-committal in their support this session, now that EFCA’s passage seems logistically more likely. Other senators will be similarly targeted, as 60 votes are needed for cloture on a likely filibuster, and the numbers are not guaranteed at this point given intense employer opposition to EFCA.

Meanwhile, opponents of this bill have introduced legislation in both the House and Senate aimed to preserve secret ballot union elections. The Secret Ballot Protection Act (S. 478; H.R. 1176) was introduced last week – a move that may prove to have been the catalyst for an earlier introduction of EFCA than had recently been expected. It had been widely believed that EFCA would not be reintroduced until a winner in the Minnesota Senate race had been declared. Al Franken, the Democratic candidate holding a tentative lead, is in favor of EFCA, and his vote could help end the anticipated filibuster.

It has also been rumored that EFCA would be considered first in the Senate, where support for the measure is narrower. According to an article in the Wall Street Journal, AFL-CIO President John Sweeney said he expected EFCA to be introduced in the Senate, and acknowledged that he wouldn’t be surprised if the bill were amended. Whether and in what form EFCA is passed may be revealed earlier than anticipated.

Jay:  Of the three most contentious provisions of EFCA – (1) “card check” union certification, (2) binding interest arbitration if first contract isn’t reached, and (3) increased employer penalties for unfair labor practices – which do you see as the most damaging to employers if implemented, and why?

Bob:  All these provisions are problematic, but I believe binding interest arbitration has the potential to be the most damaging. Under EFCA, an employer has a duty to commence bargaining on a first contract within 10 days of a written request from a newly recognized or certified union. After 90 days either party can request mediation and, if no collective bargaining agreement is reached within 30 days of such request, the matter can be sent to binding interest arbitration. That means that in as little as 120 days, negotiations can be taken from the parties, and the terms and conditions of the collective bargaining agreement can be dictated by a federally appointed interest arbitrator.  The provision is disturbing in two ways. First the 120 days for negotiations under EFCA is unnecessarily short. Indeed, it is not unusual for parties to take 6 to 12 months to negotiate a first agreement. With such a truncated period for bargaining, I fear there will be less good faith bargaining and more posturing by the parties for the interest arbitrator.

Secondly, until now the federal government had a limited role in the collective bargaining process. The NLRB determined whether the parties bargained in good faith and the FMCS assisted the parties when mediation was requested. The federal government never dictated the terms of the parties agreement – that responsibility was left to the parties. Under EFCA, however, determining the terms and conditions of a first collective bargaining agreement can be taken from the parties in as little as 120 days and imposed by a federally appointed arbitrator who may have little or no knowledge of the employer’s business or competitive situation nor the concerns the employees may have. It is the antithesis of free collective bargaining and is wrong for America.

Jay:  Which provisions, if any, would have little impact on the way employers do business?

Bob:  None. All of EFCA’s provisions would have a profound impact on the way employers do business.

Jay:  Assuming EFCA is reintroduced in the same form it took in the 110th Congress, what is the likelihood it will pass without substantial modification?

Bob:  It is difficult to say. In the House, EFCA will likely be introduced directly on the floor and passed without modification. The real fight over EFCA will take place in the Senate. The only weapon the opponents of EFCA have is the filibuster and it takes 60 votes on a cloture motion to end a filibuster. In 2007, a cloture motion failed by a 9 vote margin (51-48) and EFCA was tabled. Votes in the House and Senate were largely along party lines.

In the 2008 election, the Democrats gained 7 new seats. Currently Democrats hold 56 seats with Minnesota still outstanding. Al Franken’s 225 vote lead over incumbent Republican Norm Coleman has been challenged in the courts where a three judge panel is considering up to 4797 rejected absentee ballots, one ballot at a time. There are 2 independents (Joe Lieberman of Connecticut and Bernie Sanders of Vermont) who vote with the Democratic caucus.

If Senate Majority Leader Harry Reid can keep moderate “blue dog” Democrats from defecting, and induce some Republicans to support cloture (Possible candidates are Arlen Spector of Pennsylvania, Susan Collins and Olympia Snow of Maine), EFCA could pass in its present form.  On the other hand, winning a cloture vote may be more difficult than one would think. Senator Blanche Lincoln of Arkansas has said she will not vote for cloture this time around. Her fellow senator from Arkansas, David Pryor, is wavering on EFCA, as are “blue dog” Democratic Senators Tim Johnson from South Dakota and Ben Nelson from Nebraska. Newly elected Democratic Senator from Virginia Mark Warner has not taken a public position on EFCA. There are other Democratic Senators who may be having “buyers remorse” and may re-think their position on cloture now that the threat of a Presidential veto has been removed. If cloture cannot be achieved, EFCA may be withdrawn for reintroduction at a later time, or substantially modified as a result of negotiations between the two sides.

Jay:  Which provision(s) do you see as subject to the most revision, and why?

Bob:  Whether or not any provision of EFCA will be revised will depend on the political climate when a vote is taken on cloture. If Senator Reid cannot prevail on a cloture motion, he may, rather than compromise, delay the bill until he believes he can obtain cloture.

If however, the parties show willingness to compromise I believe the card check and interest arbitration provisions are most likely to be revised. According to a poll recently taken by McLaughlin & Associates three out of four voters in union households oppose the card check provisions of EFCA, and 85% of those polled believe a federally supervised election is the best way to protect the individual rights of workers. America clearly believes the secret ballot election is the symbol of industrial democracy and should be left alone.

Similarly, under the NLRA, as amended, the Federal Government did not have a role in determining the substantive provisions of a collective bargaining agreement. That was left exclusively to the parties. The Act required good faith bargaining and those provisions were policed by the NLRB. With EFCA, the concept of lack of involvement of the Federal Government in the substantive provisions of an agreement is turned on its head. Now EFCA provides that in as little as 120 days the Federal Government can appoint an interest arbitrator who can determine the substantive provisions of the parties first collective bargaining agreement. To me, the concept is antithetical to free collective bargaining.

Jay:  Do you see any constitutional impediments to EFCA?

Bob:  EFCA has engendered a number of constitutional concerns. Some believe that the Congressional mandate in EFCA to the Federal Mediation & Conciliation Services (FMCS) to establish arbitration panels “in accordance with such regulations as may be prescribed by the Service” (FMCS), without any procedural or substantive guidelines, is an unconstitutional delegation of legislative power. Others have: raised first amendment concerns with regard to the card check certification procedure; argued that the interest arbitration provision is an unconstitutional taking under the fifth amendment; and raised due process concerns regarding the enhanced penalties.

Jay:  What factors do you think will most influence EFCA’s passage?

Bob:  Six months ago I would have said the elections. Today? I think the economy will have a significant effect. President Obama has been a vocal EFCA supporter since day one and campaigned on the promise of EFCA passage during his first 100 days in office. He gained the support of the Country’s labor unions by doing so, and they are unlikely to forget his promises to them. On the other hand, business groups that have historically opposed EFCA are doing so with renewed vigor in today’s economic climate. They argue that EFCA will stifle, not spur, business growth. Their argument that EFCA will deprive employees of a secret ballot election has resonated with the public and some of the more moderate Democratic Senators. There have been signs from the Administration that EFCA may be too controversial to address immediately and its consideration may be delayed.

Jay:  What factors could delay EFCA’s introduction and/or passage?

Bob:  External factors, number one, such as the economy and foreign policy issues will have an effect on introduction. President Obama and the new Congress have a lot on their plates. Passage could be delayed by amendments to the bill, and not just those that might address the constitutionality problems I identified earlier. Amendments such as requiring a union to announce its intent to campaign, and extending the period during which the parties can negotiate a first contract could all slow the processing of the bill. Alternatively, I could envision an attempt at a compromise bill that would keep in place the current system of secret ballot elections with changes to the National Labor Relations Act to address the complaints of unions regarding the speed of the election process, and enhanced penalties for employer misconduct.

Jay:  What would be EFCA’s immediate impact on employers?

Bob:  If EFCA passes in its present form, it will change the kind of union organizational campaign an employer will experience.  Currently, unions run covert campaigns to get authorization cards signed for showing of interest purposes. Then the union files a petition for an election, the campaign comes out into the open and a vigorous debate takes place between the employer and the union on the merits of unionization, between the date the petition was filed and the date of the election,. When the employee votes, having heard the arguments from both sides, he is able to make an informed decision on whether or not to be represented.

If EFCA passes, however, the entire union organizing campaign will be covert. Employee’s will hear only one side of the issue – the union’s. When a petition is filed under EFCA it will likely be for a card check and there will be no post petition to election period for the employer to tell his “side of the story.” Informed decision making, a hallmark of the secret ballot election, will be lost.

Jay:  Is there anything an employer can or should do now in anticipation of EFCA’s reintroduction?

Bob:  Under the National Labor Relations Act, it is the employees who determine whether or not an employer’s work force will be organized. If the employees are satisfied in their working relationship with their employer, the company will probably remain unorganized. Where there is dissatisfaction, unionization could result.

What should an employer do? A proactive strategy, before EFCA and before the hint of an organizational effort, is to determine your vulnerability. Such a strategy combines many factors from auditing, to planning, and to training. Do a comprehensive human resources audit. Look at your communications forums with employees. Do they keep employees up to date on what is happening? Do they encourage two way communications? Review your polices and practices – do you have good hiring practices, clear and understandable policies, and an effective performance appraisal system. Assess your supervisors – are they fair and evenhanded in their dealings with employees? Are they people oriented or are they inconsistent and arbitrary? Are you wage rates and fringe benefits competitive with your industry and geographic area? Are working conditions desirable? How is employee morale? The planning stage involves analyzing the results of your audit, and making the changes to minimize your vulnerability.

Last of all, train all managers on: the reasons employees unionize; the effect of signing an authorization card in a post EFCA world; the importance of good communication and the need for fair and consistent treatment of employees; and how to talk to employees about unions and unionization lawfully.

Positive employee relations make for satisfied employees, and satisfied employees dramatically reduce your vulnerability to organizational efforts in a post EFCA world.

Jay:  Assuming EFCA is eventually enacted in some form, what is an employer’s best course of action?

Bob:  An employer who does not focus on its employees—their morale, their relationships with supervisors (and the competency of those supervisors), their compensation and benefits structure as compared with the relevant industry and geographic area—is essentially encouraging its employees to look outside of the company for solutions to their problems...and this is so, whether EFCA is enacted or not.

For more information on EFCA and its implications, see Littler's ASAPs:  Obama Presidential Election Victory Could Lead To Dramatic Increase in Unionization of Employers in the U.S. by Gavin S. Appleby, John M. Skonberg, and James M. L. Ferber, and 
The Employee Free Choice Act: It’s More than Just a Misleading Name by Gavin S. Appleby.  See also the Littler Report:  The Employee Free Choice Act: A Critical Analysis.

This legislation would make it an unfair labor practice under the National Labor Relations Act (NLRA) for an employer to recognize a union that has not been selected via secret ballot. Moreover, this bill would make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election conducted by the National Labor Relations Board to cause or attempt to cause an employer to recognize or bargain with it. Similar legislation had been introduced in the past three Congresses, to no avail.

This bill was clearly introduced to beat Democrats to the punch in re-introducing EFCA. Known as the “card check” bill, this act would, among other things, allow a union to be named as the employees’ exclusive bargaining representative if the union can garner sufficient support via signed authorization cards, without the holding of a secret ballot election provided for under the NLRA currently. Organized labor has made the passage of EFCA its prime legislative goal for this administration. Although President Obama had co-sponsored EFCA when it was first introduced in 2007, he has been noticeably less vocal in his support of this bill since taking office. Both organized labor and business interests have been marshaling their forces to wage public – and highly contentious – campaigns in support of/against EFCA. House Majority Leader Steny Hoyer (D-Md.) had previously intimated that EFCA in some shape or form would not be introduced until April at the earliest. Sen. Harry Reid (D-Nev.) had expressed hope that the Senate would begin serious consideration of the bill by the summer. It is not known whether these plans will change now that the Republicans have made the first move.

In response to a question about EFCA during an interview with CNBC, Biden said that the administration would push for it “prudently,” and that there is “only so much on the plate these first couple of months.” He continued that both he and the president “ . . thought 10 months ago that this would be a top-priority item in terms of immediate action. We know there’s probably going to be some compromise here.” When the interviewer commented that he appeared to be saying the act would not be up for consideration until 2010 at the earliest, Biden protested: “No, no, no, no. This year. This year, we hope. Our expectation is this year, this calendar year, that we will move, and hopefully with some bipartisan support, to dealing with this issue.”

During his daily briefing, White House Press Secretary Robert Gibbs was asked about whether Biden’s remarks represented the administration’s position. In response, Gibbs referred to Obama’s statement to the Washington Post earlier this year, in which he evaded the issue of a timetable, instead stating that his first priority was the economy, given that “[i]f we’re losing half a million jobs a month, then there are no jobs to unionize . . .” He also commented in that interview, “Let’s see what the legislative docket looks like.”

Obama remained tellingly silent on the issue the day after Biden’s remarks when speaking to an audience of union chiefs and key members of Congress to announce that he was issuing three executive orders reversing Bush-era labor policies. While talking about the need to “level the playing field for workers and the unions that represent their interests,” he did not mention EFCA as a means of doing so.

Members of Congress have indicated that they may try to introduce EFCA in some shape or form as early as this spring. Earlier this month, House Majority Leader Steny Hoyer (D-MD) stated his belief that EFCA would not be introduced in the House until April at the earliest. Last week, Senate Majority Leader Harry Reid (D-NV) announced that the Senate hoped to address EFCA “sometime this summer.”
 

This highly contentious piece of legislation would require the National Labor Relations Board (NLRB) to certify a labor union as the exclusive bargaining representative of employees based on the submission of authorization cards signed by a majority of employees (“card check”), without employees voting in a government-supervised, secret-ballot election. EFCA would also require binding interest arbitration to set the terms of a first contract if the union and employer cannot agree within a specified time period, and increase employer penalties for committing unfair labor practices.

President Obama was a cosponsor of the Senate version of the bill when it was first introduced in 2007 (S. 1041; H.R. 800). The bill died in the Senate when its proponents could not garner sufficient votes to invoke cloture and stave off a filibuster. Although the situation has changed, Democrats in the Senate still do not have sufficient votes to stop a filibuster, assuming all vote in EFCA’s favor. Moreover, at least two Democratic senators have expressed reluctance to pass EFCA in its current incarnation, and others – including Arlen Specter (R-Pa), the only Republican senator to support EFCA the first time around and newly-elected Senator Mark Warner (D-Va.) – have been noncommittal in their backing.  Business groups continue to educate legislators and the public regarding how employee “free choice” is actually curtailed by eliminating secret ballot elections, and how the compulsory interest arbitration provisions are likely to deter meaningful collective bargaining.

Unions, on the other hand, are waging their own media campaign to push EFCA and other labor-friendly legislation through Congress. Organized labor had hoped to pass EFCA within Obama’s first 100 days in office. The financial crisis has helped to derail that plan, if only temporarily. Under similar circumstances in 1933, organized labor waited a full two years to be rewarded for its election support of President Franklin D. Roosevelt with the passage of the National Labor Relations Act in 1935.

The battle over EFCA will surely heat up now that Sen. Reid has acknowledged the intent to reintroduce it. House Majority Leader Steny Hoyer (D-Md.) indicated earlier this month that the bill would not be introduced in the House until April at the earliest, setting the bill up for Senate consideration this summer. Whether and in what form EFCA will take this legislative session remains to be seen.