Employee Free Choice Act

Employee Free Choice Act: 2009 Could Be Its Year

While the agenda for the new, even-more-Democratic Congress is only beginning to take shape, it will be no surprise to see the Employee Free Choice Act at or near the top of the legislative wish list.

The bill, introduced in every session since 2003, would:

1.         Require the National Labor Relations Board to certify directly, rather than ordering an election, if a majority of employees (50% + 1) sign cards authorizing an individual or labor organization to be their exclusive representative. Before making the certification, however, the NLRB would first have to determine: (a) the unit is appropriate; (b) the signatures are valid; and (3) there is no other individual or labor organization certified or recognized as the exclusive representative of any employee in the proposed unit.  Under current law on card checks, employers can refuse to grant representation, forcing unions to petition for an election.  Elections still would be required if unions present cards signed by only 30 to 50 percent of employees.

2.         Allow the Federal Mediation and Conciliation Service to intervene if parties cannot reach agreement on an initial contract. Either party could request mediation after 90 days of negotiations, which must begin 10 days after an employer receives a written request for bargaining. Intervention by the FMCS would not be mandatory, but if FMCS is brought in and cannot mediate/conciliate an agreement within 30 days, the dispute would be submitted to binding arbitration. Terms imposed by the arbitration panel could not be appealed and would remain in effect for two years, unless amended by written consent of the parties.  The deadlines also can be extended by mutual agreement of the parties.

3.         Award liquidated damages equal to two times the amount of back pay to an employee terminated by an employer in violation of section (a)(3) or section 9 during an organizing drive or an attempt to get an initial contract. Employers also would be subject to fines of up to $20,000 for each willful or repeated violation.

4.         Require the NLRB to seek a federal court injunction when there is reasonable cause to believe a company has discharged or discriminated against employees, threatened to do so, or engaged in conduct that significantly interferes with employee rights during an organizing campaign or first contract negotiations. The legislation also would require expedited investigation of such charges.

There is significant concern that this legislation would:

(a) Subject employees to duress by unions to sign representation cards;

(b) Strip employees of their right to secret-ballot elections on whether to form and join a union;

(c) Deprive employees of the right to bargain for and vote on terms of their contracts;

(d) Subject employers to costly penalties while leaving unions free to act with impunity; and

(e)  Force employees into unfair contracts through the arbitration process, which provides insufficient time to negotiate a reasonable first agreement.

The U.S. House approved the measure 241 to 185 in March 2007, but it died in the U.S. Senate after supporters fell nine votes short of cutting off debate and forcing an up or down vote. Democrats will hold at least 58 seats in the Senate in the new Congress, still shy of the 60 needed to end a filibuster, but the measure will have a vocal advocate in White House in Barack Obama, something it did not have in George W. Bush.

It is important for employers to keep a close eye on this legislation.  If it becomes law, it will change the way employers need to address potential union organizing activity.