Proposed Changes to the National Labor Relations Act
The Employee Free Choice Act (EFCA) proposes to remake the National Labor Relations Act in several significant, and pro-union, ways. It would eliminate secret-ballot elections in favor of a card-check regimen when a union presents the employer with authorization cards signed by a majority of its employees. After the union is recognized on this basis, its first-contract interest arbitration provisions would take away the employer’s (and employees’) fundamental right to establish, by collective bargaining and the economic leverage tools at their disposal under the present law, the terms of their own initial contract. Additionally, the EFCA provides for stiffer sanctions against employers, but not unions, for labor law violations which may be committed during organizing campaigns and first contract negotiations.
The most often heard, and valid, criticism of the EFCA is its “card check” provision. Traditionally, unions have begun organizing campaigns by meeting with employees in the bargaining unit about union representation, attempting to obtain signed authorization cards from at least 30% of the employees in order to petition the NLRB for a secret ballot election. If the union obtained cards from more than 50% of the employees in the bargaining unit, the employer could voluntarily forego an election and recognize the union. The EFCA provides that if the NLRB finds that a majority of the employees have signed valid authorizations, “the Board shall not direct an election but shall certify the individual or labor organization as the representative….” [H.R.800§2(a)]. The EFCA’s “card check” provision would impact the right of an employee, by secret ballot, to freely and privately choose (or reject) a bargaining representative, substitute a less reliable means of gauging the employees’ support (or lack of support) for a union, and foster an environment that would promote employee coercion and harassment (by union organizers) to obtain signed authorization cards. It would also eliminate an employer’s right, under present law, to make its case to the employees and obtain a true measure of the employees’ support for the union through the Board’s secret ballot election process, which has been in place since 1947.
Recently, attention, and criticism, has also been focused on the EFCA’s imposition of binding initial contracts on those parties who do not reach an agreement within the Act’s accelerated timetable. This provision conflicts with the long-standing, significant and basic premise of the National Labor Relations Act, that while the parties can be compelled to negotiate in good faith, they are not compelled or required to reach an agreement. The ECA would require agreement, either one hastily negotiated by the parties, or, if not, one imposed by an arbitrator.
Together with its enhanced enforcement provisions, which ratchet up penalties against employers, but which fail to address and ignore examples of aggressive and misleading union campaigns and tactics, the elimination of the secret ballot and first contract arbitration provisions of the EFCA make the Act unpalatable to employers and the “wrong medicine” for the purported ills of the present system. It had appeared that the EFCA would not make it out of the Senate, or even come to a vote, as its proponents lacked the necessary votes to force “cloture.” With the possibility of compromise and the strengthening of the Democrats’ majority status in the Senate, the picture is now less clear and, for employers, more bleak.
Democratic Senator Tom Harkin, a lead sponsor of the EFCA, said this week that he hoped to reach an agreement on a compromise version of the EFCA by next month. Recent improvements in the economic outlook make a compromise all the more likely, and the EFCA remains a priority for the Obama Administration. It is a given that any compromise bill, which makes it to the President’s desk, will still be significantly “pro-union.” One part of the “compromise” being currently floated in the Senate would apparently allow workers to unionize if 50% of them mailed in ballots, as opposed to letting union organizers obtain, and turn in, signed cards. This supposedly takes away the harassment issue, but nothing would prevent a union organizer from “standing over” an employee and collecting his ballot for mailing, which falls far short of the present protections inherent in the NLRB secret ballot election process. We will be monitoring the progress of this significant legislation and will update you in the event that the EFCA, in either its original version or a compromise version, passes and is signed into law.
