As the union-friendly Employee Free Choice Act (EFCA) (S. 560 and H.R. 1409) makes its way through Congress, one of the most controversial provisions of the legislation has been withdrawn.  That's the good news for employers.

 

However, the revised EFCA still makes it much easier for unions to organize employees - and with the amendment, it is more likely to be passed by both houses of Congress.  Here's what's going on.

As part of a compromise to help get the EFCA passed, a group of Senate Democrats have agreed to drop the provision for "card-check" union certification.  Under that provision, any company's employees could have become unionized based on signed pledge cards by a majority of employees.

The card-check provision would have virtually ended the successful 74-year practice of NLRB supervised secret ballot elections to decide whether employees want to become unionized.  Critics from both sides of the aisle called the card-check proposal undemocratic and even unfair, because it would have essentially removed confidentiality from union organizing campaigns.

However, in place of the card-check provision, Senate Democrats are expected to agree to agree to a host of other changes to EFCA that would make it more difficult for employers to resist unionization campaigns.

 

For example, one proposal would dramatically shorten the time for unionization campaigns and elections.

Currently, an NLRB election is held approximately 6 weeks after the union files an official request with the NLRB.  During the run up to the election, the employer may talk with its employees about the pros and cons of unionization.

 

Proponents of the EFCA have proposed a substantially shorter time period, giving the employer little chance to effectively communicate on the issue.  The revised version of the EFCA could shorten the "campaign" period to as few as five or ten days.

Another union-sponsored proposal would limit or eliminate an employer's right to keep non-employee union organizers off the employer's private property.  Unions have long sought "access" to the employer's premises so they could campaign while employees are at work.

Senators are also considering an amendment that would make it illegal for employers to require employees to attend meetings at work where the employer presents its case against unionization.  This would be another dramatic change from existing law.

Meanwhile, one of the most controversial provisions of the EFCA is still on the table: the proposal for compulsory arbitration to set working conditions (wages, benefits, hours, etc.) if a labor contract is not signed within 130 days of the union's certification.

 

Critics argue that this proposal would drastically alter the process and dynamics of collective bargaining.  Instead of both sides relying on traditional negotiation tactics, a union could decide to "run out the clock" and have working terms and conditions decided by a federally-appointed arbitration board or panel.  Since most arbitrators know nothing about how to run a company's business, their decisions are likely to be highly objectionable to employers - and they would be binding for at least two years.

A recent Wall Street Journal column discussed a Michigan law passed 40 years ago that imposed compulsory arbitration to resolve contract disputes involving police and firefighters.  Coleman Young, who voted for the bill when he was a state senator and later became Mayor of Detroit, declared compulsory arbitration a "failure" because it "destroyed sensible fiscal management."  Business groups are urging Congress not to repeat Michigan's mistake.

 

Senate leaders have indicated that a vote on the EFCA is unlikely until September at the earliest because Congress is currently focusing on health care legislation.  However, the compromise on the card-check provision suggests that the EFCA - in one form or another - is slowly but surely on its way to becoming the law of the land.

We continue to urge employers to prepare themselves now for the impact of the EFCA if and when it is enacted.  BRG&S has developed a management education and awareness program to guide companies through the possible changes that EFCA may bring and strategies they may employ now to educate the workforce about their rights.

 

If you would like more information about strategies your company may employ, please contact partners Ken Ballard, Rich Rosenberg, Matt Wakefield or John Golper.