EFCA

While the Employee Free Choice Act (“EFCA”) received front page treatment immediately after the November ’08 elections and through the spring, 2009, it has slowly lost its life force, so as to become moribund.  While quickly introduced into the House, it rapidly lost support among key Democratic Senators, including Sen. Arlen Specter (D – Pa.) and Sen. Dianne Feinstein (D – Ca.).  By June, the Senate Democrats and labor were at least six votes short of that needed for cloture and to end debate.  Since then, the bill has been comatose, on a deathbed.  While the bill is labor’s priority, it has received much less attention from President Obama, who has focused his energy on health care, climate change, and the great recession.

Many commentators have speculated that labor has a fighting chance to revive and pass EFCA if it pushes hard in 2010 before the mid-term elections, with compromises in mind.  Such compromises would include super majority card checks, quickie elections, or some combination of both; elimination or modification of mandatory interest arbitration for first time labor agreements, and implementing financial penalties and fines for employers who fail to bargain in good faith, or engage in surface bargaining; guaranteeing unions access to employees at the workplace, and limiting or restricting the employer’s right to engage in captive audience speeches; and imposing civil monetary penalties for unfair labor practices.

The chances of passage could be enhanced if a compromise version was tacked on as an amendment to a job creation or other large bill.  But the compromise would have to be just that, and not hand either management or labor a lopsided win.  Such an effort will have to begin now, as the midterm elections are only 10 months away, and all indications are that Democrats in both Houses will lose a significant number of seats.  One can imagine the frustration of SEIU President Andrew Stern as he reviews union expenditures after his weekly visits to the White House.

This next two quarters, Arnstein & Lehr will be conducting several seminars to educate employers on how to remain union free, no matter what happens with card check at the end of the day.   We will keep you informed of developments, and look forward to seeing you there.  Happy New Year to all.

Mark A. Spognardi is a partner in Arnstein & Lehr’s Labor and Employment Law Department.  His practice is devoted exclusively to representing management in  traditional and non-traditional labor and employment law litigation and counseling.

Politicians don’t typically broadcast their defeat, and when they do it pays to watch for the blindside hit. That’s surely the case with last week’s reports that six liberal Senators are abandoning part of labor’s top priority, “card check” legislation.

The legislation to eliminate secret ballots in union elections has in fact been comatose for weeks, since Pennsylvania’s Arlen Specter and Blanche Lincoln of Arkansas declared their opposition. So the real purpose of this “concession” is to shift to Plan B, which is to repackage most of what labor wants with new ribbons and wrapping. The bill that Senators Tom Harkin (Iowa), Mark Pryor (Arkansas), Mr. Specter and others are now considering would still give unions the whip hand in negotiations with management.

One proposal would slash the time for an organizing vote, requiring that it be held within five or 10 days after 30% of workers had signed cards asking for a union. The median time today is 38 days. Organizers want the rush because they know the more time workers have to learn about a union, the less they usually want one. Once employees hear the other side of the story, support dwindles.

This also explains a Big Labor demand to bar companies from requiring their workers to hear management’s side during a union campaign. Labor supporters say this creates a “captive audience,” but these meetings are one of management’s few opportunities to address workers, since companies are barred from the sort of outreach allowed to union organizers — such as visiting employees at home. At the same time, Senators want to give union organizers access to company property.

Democrats also aren’t giving up on binding arbitration, which would let a federal arbitrator impose a contract if management and a newly established union at a work site aren’t able to agree within 90 days. The provision would encourage unions to make maximum demands and play for time, knowing that an arbitrator could force management’s hand. Binding arbitration also denies employees a vote on a contract.

Labor is desperate to rig the bargaining rules because most workers show time and again that they don’t want a union. Americans know unions promise higher wages and benefits and more job security. But workers can also see what has happened to such highly unionized industries as steel, autos, airlines and many others. Unions couldn’t save those jobs, and in fact they contributed to their demise with contracts that made the industries uncompetitive. Most workers would also rather not hand over a chunk of their paycheck in mandatory dues to finance the political agenda of labor leaders.

Democrats and the AFL-CIO are hoping that if they dump the unpopular secret ballot ban from card check, they can get to their magic number of 60 Senators. The business community and Republicans shouldn’t be fooled and let Democrats from swing states off the hook. Card check under any cover is still a job killer.

On August 19, Arnstein & Lehr’s Labor & Employment Law Practice Group is hosting a full day seminar entitled Taming Technology: Risks and Rewards of Workplace Blogs, Twittering and Social Networking.

EFCA Could Be Law Within 5 Months: Union Leader

Law360, New York (March 03, 2009) — AFL-CIO Executive Council member and union leader James Williams said Tuesday that he expected the controversial Employee Free Choice Act to pass in the next four or five months.

Williams, general president of the International Union of Painters and Allied Trades, is one of more than 40 members who comprise the AFL-CIO’s Executive Council….To Read More about EFCA click here.

Congressional Republicans Feb. 25 announced introduction of legislation in the House and Senate, named the Secret Ballot Protection Act (bill numbers not available yet), that would ensure employees in union organizing campaigns the right to a secret ballot election conducted by the National Labor Relations Board.
The legislation is a preemptive strike against the Employee Free Choice Act that Democrats are expected to introduce soon, Sen. Jim DeMint (R-S.C.), and Reps. Howard P. “Buck” McKeon (R-Calif.), John Kline (R-Minn.), and Tom Price, (R-Ga.) said at a press conference announcing the bill. Declaring that a secret ballot is a fundamental employee right, they said EFCA would deny workers that right and create a climate of intimidation during union organizing campaigns.

“Secret ballots are a hallmark of American Democracy. They protect individuals-whether they are voters on election day or workers deciding whether to organize-from public pressure, intimidation, or post-vote retribution,” McKeon said.

The bill would amend the National Labor Relations Act to make it an unfair labor practice for an employer to recognize or bargain with a union that has not been selected by a majority of employees in a secret ballot election conducted by NLRB. The bill also would make it an unfair labor practice for a union to cause or attempt to cause an employer to recognize or bargain with a union that has not been selected by a majority of employees in a secret ballot NLRB election.

Kline and Price, the ranking Republicans on House Education and Labor Subcommittee on Health, Employment, Labor, and Pensions and the Subcommittee on Workforce Protections, respectively, and McKeon, ranking member on the House Education and Labor Committee, introduced the bill. DeMint, and Sen. Mike Enzi (R-Wyo.), ranking member of the Senate Health, Education, Labor and Pensions Committee, introduced the companion bill in the Senate.

The bill has 101 co-sponsors in the House and 16 co-sponsors in the Senate.

The USA Today reported:

WASHINGTON – The head of the country’s largest labor union says he expects victory by August on one of labor’s top priorities in Congress: legislation designed to make union organizing easier.
Andrew Stern, president of the 2 million-member Service Employees International Union, said Wednesday he thinks there are enough votes in the House and Senate to approve the bill known as “card check.” The measure would allow workers to form a union by gathering signed cards from a majority of employees, rather than the current method of winning a secret-ballot election overseen by the National Labor Relations Board.

Click here for a link to the full article.

EFCA would amend the National Labor Relations Act (“NLRA”) in three dramatic ways.  Currently, employees desiring union representation are subject to a secret ballot election, where they vote “yes” or “no” to be represented by an election.  EFCA would effectively eliminate the secret ballot election by requiring an employer to recognize and bargain with a union if the union presented “authorization cards” signed by 51% of its employees.  The amendment would also have the effect of depriving the employer of having time to communicate its position on the negative effects of unionization to employees during the campaign period leading up to the current ballot process.  Additionally, employees may be subject to pressure and coercive tactics by unions and fellow pro-union employees to sign authorization cards, because the secret ballot election will have been eliminated.

Second, once the union is recognized as the collective bargaining representative of employees, the employer would have to start bargaining with the union within 10 days.  This is an insufficient amount of time to formulate proposals and establish an employer bargaining committee.  If a contract is not reached within 90 days, the employer is required to go to mediation before the Federal Mediation and Conciliation Service for 30 days.  If no agreement is reached at that point, the employer is required to submit to binding interest arbitration before a neutral arbitrator who will determine the wages, benefits and other terms and conditions of employment of the employees for a 2 year union contract.  Besides the frightening proposition that a third party will decide the compensation and benefits of an employer’s employees, the legislation fails to address what standards the arbitrator shall use in making his award.  The legislation does not contemplate appeals from an arbitrator’s award.

This portion of EFCA is extremely troubling.  An arbitrator could place a healthy or struggling employer in a non-competitive or precarious financial position by granting significant increases in wages, benefits and other terms of competition.  The arbitrator would also have final say over pensions, hours of employment, subcontracting, severance, and discipline and discharge of employees.  While the statute contemplates that the arbitrator will decide what is in the first 2 year agreement, nothing in the statute prevents the arbitrator from requiring binding interest arbitration of successor agreements.

Finally, EFCA would significantly increase the penalties faced by employers who intentionally or inadvertently commit unfair labor practices.  Currently, employers are only required to pay backpay and provide reinstatement to employees discharged for union activity.  Other violations of the NLRA, such as unlawful interrogation or threats, are subject to a cease and desist order, and a requirement that the employer post a notice stating it will not violate the law again.   EFCA would require that the employer pay treble damages for unlawful discharges plus a civil penalty of up to $20,000, and civil penalties of up to $20,000 for all other unfair labor practices.

There are many questions left unanswered by EFCA.  For instance, how long will the authorization cards be valid?  What if an employee claims he signed a card involuntarily? How can a card be checked for forgery?  How can an employer challenge the appropriateness of the claimed bargaining unit?  What will be the standards for arbitration?

EFCA is not the law yet.  In 2007, EFCA passed through the Democratic controlled house by a vote of 241 to 185.  It was stopped by one vote in the Senate.  While Congress and the President are currently preoccupied with the stimulus package, on February 4, 2009, organized labor presented Congress with a petition signed by a million and a half employees supporting EFCA.   Rep. George Miller (Rep. Calif.) is expected to reintroduce EFCA in the “near future.”  While the House is firmly in Democratic control, the Senate may be able to get a filibuster proof majority.  It is also possible that there may be a bi-partisan compromise that may replace the card check provisions with “quickie” secret ballot elections, or remove the interest arbitration provisions.

What can be done to protect your company?  Contact your elected officials to let them know how you feel about this legislation.  Conduct a human resources audit to determine the health of your organization.  This includes reviewing policies and practices, and conducting employee satisfaction surveys.  Educate employees and managers about your union-free philosophy, the dangers involved in signing a union authorization card, and the negative consequences of unionization. And educate your managers about lawful and effective union avoidance techniques.   In the end, a smart employer will be prepared to run a permanent union-free campaign.

Mark A. Spognardi is a partner at the law firm of Arnstein & Lehr, LLC, in Chicago, Illinois, and exclusively represents management in labor relations and employment law matters.