March 11, 2009 - Long dissatisfied with the lackluster growth of union membership in the private sector, for the last two years unions have aggressively lobbied and built up their war chests to push through a series of laws and propose Executive Orders to tilt the playing field in favor of union organizing. The centerpiece of this campaign has been to pass the Employee Free Choice Act ("EFCA"). One belief is that passage of EFCA could have the result of jumping union membership from 7.5% to 20%. In 2007, the unions failed to muster the needed votes to pass EFCA and have been waiting for the right time to reintroduce the Act. Characterized by many employers as legalizing stealth organizing and allowing outside dictation of working conditions in private businesses, the bill enjoys strong support by President Obama and the democratically controlled House of Representatives. Last week in an address to the AFL-CIO, President Obama endorsed EFCA and yesterday EFCA was introduced into the U.S. House of Representatives.
How Does EFCA Tilt The Playing Field?
- NO SECRET BALLOT ELECTION: Right now, in the normal course of organizing, employees must vote to have a union represent them in a secret ballot election monitored by the National Labor Relations Board ("NLRB"). Unions have long been frustrated that they lose too many of these elections due to employer outreach to employees during the authorized campaign period before the election. EFCA would allow unions to bypass the secret ballot process and any campaign period before the election. There would be no formal notification to an employer that a union was trying to organize employees. Unions could solicit employees to sign cards without an employer ever knowing that organizing was occurring.
- FAST TRACT TO UNION CONTACT: If a majority of the employees in a bargaining unit sign valid authorization cards, the NLRB would have to certify the union as the bargaining representative and the employer would have to immediately start bargaining.
- BINDING ARBITRATION: Today when a new contract is negotiated it is truly a give and take process between employer and union. If no contract is reached, the union can take actions including a strike, and both employer and union can file claims with the NLRB over unfair labor actions. Under EFCA, if the employer and union have not reached agreement on the terms of a first contract within 90-days after bargaining begins, either party may request mediation. If mediation is not successful within 30-days, the Federal Mediation and Conciliation Service (FMCS) must refer the dispute to an arbitration board. This is binding arbitration. This means that an arbitration panel would decide on all the terms under the contract, including wages and working conditions, which will be binding for 2 years.
- NEW PENALTIES: EFCA provides for mandatory injunctions and also double back pay damages and a $20,000 fine for certain alleged employer unfair labor practices.
- DETAILS ARE LACKING: EFCA has sweeping language and almost no detail on how it would actually work. For instance, what are the factors that the arbitration panel would take into consideration when imposing wages on an employer? What qualifications and knowledge would the arbitrator have of the industry? The list of questions is long.
Executive Orders Add To Labor-Tilted Playing Field
Just one month into his term of office, President Obama issued four Executive Orders related to labor-management relations.
- Executive Order 13496 – Requires federal contractors to post notices advising employees of their rights to organize under the National Labor Relations Act.
- Executive Order 13494 – Prohibits the government from reimbursing contractors for "...the costs of any activities undertaken to persuade employees..." concerning ..."the right to organize and bargain collectively through a union."
- Executive Order 13495 – Requires successor service contractors to offer a "right of first refusal" to the predecessor's non-managerial, non-supervisory employees which would tie into a union's successorship rights.
- Executive Order 13502 – Permits and encourages federal agencies to require that contractors enter into pre-hire collective bargaining agreements, also known as project labor agreements, for construction projects valued at $25 million or more.
Employers Respond
- On February 25, 2009, the Secret Ballot Protection Act was introduced in both houses seeking to preserve the secret ballot procedures.
- Litigation has been threatened to block the implementation of Executive Order 13502, along with reintroduction of the Government Neutrality in Contracting Act, to codify Bush's prior order prohibiting project labor agreements.
- Employers are rallying through their industry associations and organizations as the Society of Human Resource Management to lobby their Representatives and Senators. While it is anticipated that EFCA will pass without significant challenge through the House of Representatives it may face more resistance in the Senate. Now is the time, if you have concerns about passage of EFCA, to make your voice heard.
We are keeping on top of the latest developments regarding the EFCA, the Secret Ballot Protection Act, and the Obama Administration's labor initiatives and will work to keep you updated. Julie Kebler has just returned from the American Bar Associations' Labor Committee meeting and has a good feel for the breadth of these union-oriented initiatives.
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