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National Desks/Political Writers/Labor Writers
WASHINGTON--(BUSINESS WIRE)--September 8, 2008--In an attempt to
reverse the precipitous decline in union membership over the last 30
years, recent initiatives by organized labor reflect a determined
assault on workplace democracy designed to organize new groups of
employees regardless of whether those employees truly need or want
union representation. One of organized labor’s primary tactics is to
secure passage of the deceptively misnamed Employee Free Choice Act
(EFCA). This highly controversial piece of legislation would
radically alter the method by which employees select union
representation and transform the process by which employers and
unions initiate collective bargaining agreements under the National
Labor Relations Act (NLRA).
EFCA undoubtedly will be a major issue in the Presidential
election. Senator Barack Obama supports the legislation. The bill
passed the House of Representatives in 2007 and if Senator Obama is
elected, many presume this will be one of the first items on his
legislative agenda.
In anticipation of the heightened EFCA debate, Ford &
Harrison’s D. Gerald Coker answered the most pressing questions the
legislation presents.
What is the Employee Free Choice
Act?
The Employee Free Choice Act (EFCA) is proposed legislation which
aims to amend the National Labor Relations Act (NLRA) to establish a
new system by which employees unionize and companies and unions
negotiate first contracts.
If passed, how would EFCA affect the current
law?
Drafted as proposed amendments to the NLRA, EFCA would effect
three fundamental modifications to federal labor law:
EFCA establishes a mandatory card-check recognition
process in lieu of the current secret ballot election system
administered by the National Labor Relations Board.
EFCA sets
forth special procedural requirements for reaching an initial
collective bargaining agreement, including the imposition of a
“neutral arbitrator” (after four months of unsuccessful bargaining)
to determine the terms of the first collective bargaining
agreement.
EFCA revises enforcement procedures against
employers with respect to alleged unfair labor practices that occur
during union organizing drives and alters the remedies available to
alleged discriminatees because of such violations.
What is a card-check, and how does it
work?
A card-check does away with the secret ballot system. Employees
will no longer cast ballots on union representation in the privacy
of a voting booth; instead, an employer would be required to
recognize a union as the employees’ exclusive bargaining
representative once the union presents signed authorization cards
from a simply majority of the employees in the work group targeted
by the union.
Are card-checks a fair alternative to the secret
ballot?
Card-check recognition would give unions a license to use
high-pressure tactics against employees behind closed doors in order
to obtain signed union authorization cards. The proposed legislation
does not contain any provision allowing employees to “ratify” the
card-check. EFCA does not specify whether employees can decertify a
union through a card-check majority.
Are card-checks
foolproof?
Experience has shown that signed authorization cards do not
necessarily reflect how the majority of employees really feel about
union representation. Currently, an employee who signs a card out of
ignorance or under duress is free to vote “no union” in a secret
ballot election conducted by the National Labor Relations Board
several weeks later. Moreover, EFCA fails to provide any guidance
with regard to the processing of authorization cards. How long will
authorization cards be valid? Can an employee rescind or revoke his
card and, if so, how? Will there be a process for detecting forged
cards?
There’s a lot of talk about how EFCA affects
employees, but how does it affect the
employer?
EFCA affects employers in a number of ways:
EFCA excludes employers from the representation process.
EFCA will create a largely unregulated atmosphere where employee
“choice” is sealed off from any input but that of the union’s. This
violates the spirit and intent of the free speech rights expressly
set forth in our labor laws.
Employers must consider a
year-round campaign. EFCA allows a union to gather signatures
without the employer’s knowledge. An employer may not find out until
the union asks the NLRB for certification, and at that point, it is
too late for the employer to do anything about it. If EFCA were to
pass, an employer would have to consider communicating with
employees throughout the year about union organizing, which can be a
major distraction and misinterpreted as an anti-union
campaign.
EFCA allows a government-paid arbitrator to set
wages and benefits in a first contract. A union can call for
mandatory arbitration if the parties have not reached a first labor
agreement after only 120 days; this has the potential to impose
significant contract provisions that are not in the employer’s best
interest.
Higher union density could mean higher costs. As
EFCA reinvigorates Big Labor’s organizing efforts, the renewed
energy and EFCA’s card-check process would result in more organizing
“victories” and thus increased union membership. This increase in
union shops combined with mandatory arbitration of first contracts
could force employers to increase their labor costs, adversely
affecting the economy and employment levels on a national scale.
How does EFCA change the bargaining table during
negotiations for a first contract?
The arbitration provisions of involving a “neutral arbitrator”
would completely undermine the employer’s power and leverage at the
bargaining table. A union would have no incentive to reduce its
bargaining demands prior to the arbitration procedure. Arbitration
could substantially and arbitrarily increase the costs of a first
union contract and likely lead to decreased competition in the
marketplace and the higher cost of goods and services. An employer
may be compelled to accept certain contract provisions contrary to
the employer’s best interests such as participation in a
multi-employer defined benefit pension plan (many of which are
underfunded), wage increases without regard to merit, restrictive
work rules, seniority-driven promotion and layoff processes,
cumbersome discipline and discharge procedures, and minimum staffing
requirements just to name a few.
What types of employer practices will be
punished by the proposed regulations?
EFCA would require the National Labor Relations Board to give
priority to conducting the preliminary investigation of certain
charges filed either when employees are seeking union representation
or during the period between an employer’s recognition of a union
and the point where the parties reach agreement on their first
contract. These “priority charges” include those alleging that an
employer discharged an employee to discourage union membership or
that the employer threatened to discharge or otherwise discriminate
against an employee in order to interfere with, restrain, or coerce
employees in the exercise of their right to self-organization as
protected by Section 7 of NLRA.
What can employers do to voice their opposition
of EFCA?
Since EFCA is not a law yet, employers, either on their own or
through various trade associations, can let candidates and elected
officials know how they feel about this piece of legislation.
Companies will also want to consider being proactive with
managers and employees. Steps would include publishing a lawful
union-free philosophy which communicates to employees that a
union-free working environment works best, providing education and
training to their managers and employees so they understand
authorization cards and signature petitions, and assessing the
status of employee relations now with the intention of addressing
legitimate workplace problems before any union organizing
begins.
About D. Gerald Coker: Mr. Coker devotes his practice to
working with companies on a broad range of labor and employment
matters, with an emphasis on union organizing drives, NLRB
representation cases, union corporate campaigns and strikes, and the
investigations and trials of NLRB unfair labor practice cases. He
has assisted companies in more than 110 union election cases
throughout the U.S., as well as numerous union organizing drives
that did not proceed to an election. He is the past Chairman and a
current member of the Labor and Employment Law Section of the
Georgia Bar. For more information on EFCA, contact Jerry at (404)
888-3820 or jcoker@fordharrison.com.
About Ford & Harrison LLP: Ford & Harrison is a
national labor and employment law firm with 200 lawyers in 18
offices nationwide: Atlanta, Asheville (NC), Birmingham, Chicago,
Dallas, Denver, Jacksonville, Los Angeles, Miami, Melbourne,
Memphis, Minneapolis, New York, Orlando, Phoenix, Spartanburg (SC),
Tampa and Washington, DC. The firm strives to provide clients with
sound legal advice, practical counseling and excellent client
service. For more information, visit www.fordharrison.com.
Ford & Harrison LLP
by
Hellerman Baretz
Communications
Maggie Schmerin,
202-274-4768
mschmerin@hellermanbaret.com
State Keywords: District of Columbia
Industry Keywords:
Public Policy/Government; Congressional News/Views;
Elections/Campaigns; Labor; Other Government; Public
Policy
Source: Ford & Harrison LLP
<<Business Wire -- 09/09/08>>