Adversaries also contend that authorization cards are too often obtained through misrepresentations by union organizers regarding whether the effect of signing an authorization card is to designate the union to represent employees in collective bargaining or merely to authorize it to seek an election to determine the issue.
Proponents
On the other hand, proponents of the EFCA’s card check provision assert that even without the time-consuming election process, employers would have ample opportunity to present their positions on unionization. They argue, in any event, that workers usually do not become better informed through employer campaigns; rather, the time it takes to wait for an election gives employers more time to be coercive and to discourage employees from voting for union representation. The AFL-CIO, in backing the EFCA, has described the election process as follows:
“Employee Free Choice Act: Why Majority Sign-Up?” (2009), http://www.aflcio.org.
Supporters also argue that the model authorization card language to be provided by the Board, as well as procedures to establish the validity of signed authorizations, will combat potential abuses.
First Contracts
The EFCA would also amend §8 of the NLRA, 29 USC 158, regarding collective bargaining for the purpose of establishing an initial agreement following the certification or recognition of a union as the employees’ collective bargaining representative. The legislation provides that, once a newly certified representative files a written request for collective bargaining, the parties would have 10 days to meet to commence bargaining and would be required to make “every reasonable effort” to sign a collective bargaining agreement.
If the parties fail to reach an agreement within 90 days, either party would have the right to notify the Federal Mediation and Conciliation Service (FMCS) of the existence of a dispute and request mediation. FMCS then would have the duty to use its best efforts, by mediation and conciliation, to bring the parties to agreement. If an agreement is not reached within 30 days, FMCS would refer the dispute to an arbitration board. The arbitration panel would then render a decision settling the dispute and such decision would be binding on the parties for two years (unless amended during such period by written consent of the parties). All deadlines imposed by this provision could be extended by mutual agreement of the parties.
Opponents of this provision assert that it represents a major change in existing law. According to §8(d) of the NLRA, the obligation to bargain collectively “does not compel either party to agree to a proposal or require the making of a concession.” However, under this provision, if an employer and representative are unable to come to an agreement on their own or through mediation, an arbitrator will mandate the content of the first contract between the employer and the unionized employees. As Senator Arlen Specter (R-Pa.) explained on March 24, 2009, in stating his opposition to the legislation, “[s]uch arbitration runs contrary to the basic tenet of the Wagner Act for collective bargaining, which makes the employer liable only for a deal he or she agrees to.” “Senator Specter Speaks on Employee Free Choice Act/Card Check” (2009), http://specter.senate.gov.
However, proponents of the mandatory arbitration provision argue that if an employer and union representative are truly engaged in “good faith” collective bargaining as required by §8(d), they will be able to reach an agreement before the arbitration provision kicks in. Thus, they assert that the amendment is more of a remedy to ensure good faith bargaining than a usurpation of either party’s freedom of contract.
Remedies
The EFCA additionally would change the remedial framework of the NLRA. First, it would amend §10(l), 29 USC 160(l), by granting injunctive relief for unfair labor practices (ULPs) committed by employers during organizing drives or first-contract negotiations. Second, it would amend §10(c), 29 USC 160(c), by providing for treble back pay when an employee is unlawfully discharged or discriminated against by an employer during an organizing campaign or during first-contract negotiations. Third, it would amend Section 12, 29 USC 162, by providing for civil penalties of up to $20,000 per violation against employers found to have willfully or repeatedly violated employees’ rights during this time period.
Opponents argue that the extension of the right to injunctive relief (and, thus, intervention by federal courts) has not generally been favored and that the severe monetary penalties would overly deter employers from engaging in behavior that is protected because they are too afraid of approaching the line of ULPs. Proponents assert that many employers have concluded that, under current law, it is financially advantageous to violate the law and pay the penalties rather than to comply and, thus, threats of injunctive relief, treble damages, and civil penalties are necessary.
Congressional Action
The EFCA was considered in the 110th Congress with the same legislative language that is in the current version and advocated by then Senator Barack Obama. It passed the House of Representatives on March 1, 2007, by a vote of 241-185. On June 26, 2007, the bill stalled in the Senate after failing to reach the 60 votes needed to end debate and proceed to final consideration of the bill. The Senate vote was 51-48.
In the 111th Congress, the House is expected to approve the legislation again, leaving the bill’s fate to the Senate. The political climate of the legislation is changing daily with some past supporters hedging on their current position and even withdrawing their support for the legislation. For example, on March 24, 2009, Senator Specter, who previously supported bringing the legislation to a vote and was considered by many to be key to hopes for passage of the EFCA, announced that he would oppose the bill. In addition, on March 27, 2009, Senator Dianne Feinstein (D-Calif.), a past sponsor of the act, said she would seek alternative legislation that was less divisive.
Conclusion
Compromise may be necessary in order to get the legislation passed. Alternative proposals have suggested expediting the timeframe between the filing of a petition and secret ballot elections; making it a ULP for a union or employer to visit an employee at home for reasons related to an organizing campaign; forbidding employers from conducting captive audience speeches unless the union is given “equal time under identical circumstances”; and modifying the NLRA to give broader authority for the imposition of a Gissel order (requiring an employer to recognize and bargain with the union) on a finding that the environment has deteriorated to the extent that a fair election is not possible.
John P. Furfaro is a partner at Skadden, Arps, Slate, Meagher & Flom, and Risa M. Salins is an associate at the firm, specializing in labor and employment law. Beth O. Libow, an associate at the firm, assisted in the preparation of this article.
