The Employee "Free Choice"
Act: Turning Labor Relations
On its Head
Labor and Employment Group
2
Agenda
•National Labor Relations Act: Current Law on
Organizing
•The Employee Free Choice Act
•What Would Passage of EFCA Mean?
•What Can Employers Do Now?
•Questions and Answers
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National Labor Relations Act
•Section 7 rights
•Unfair labor practices
•Collective bargaining obligations
Cycle of Typical
Organizing
Campaign Under
Current Law
Initial Contact
Test the Water Assessment
Authorization Cards
Demand for Voluntary Recognition
Voluntary Recognition
Stipulation
Union Victory
Certification
Negotiations
N.L.R.B. Petition
Hearing
Briefs
Decision
No Election
N.L.R.B. Election
Union Withdraws 6-Mos. Rule
Employer Victory
Ongoing Collective Bargaining
Lockout
Strike
Contract Agreement
Ratification
No Agreement
12-Mos. Rule
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Important Points About the Current
NLRA Process
•Employer has right to demand a secret ballot
election
•Employer has right to bring legal challenges to
bargaining unit before election occurs
•Employer has time to campaign
•Employees have opportunity to hear both sides
of the story
•Employees'choices remain secret
The Employee "Free
Choice"Act
(Wouldn't George Orwell
be proud?)
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Employee "Free Choice"Act
•The stated purpose of the bill is to make it easier
for unions to organize:
"A bill to amend the National Labor Relations Act
to establish an efficient system to enable
employees to form, join, or assist labor
organizations, to provide for mandatory
injunctions for unfair labor practices during
organizing efforts, and for other purposes."
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Employee "Free Choice"Act
•"Card check"-Would eliminate employer right
to insist on secret ballot elections
•NLRB would certify a union if the majority of
employees in a bargaining unit signed union
authorization cards
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Employee "Free Choice"Act
•Would allow either party to require interest arbitration -
contract terms would be imposed if no complete first
contract within 120 days of bargaining commencement
•Would require NLRB to seek injunctions against
employer unfair labor practices during organizing and
first contract negotiations
•Would impose substantial penalties on employers - but
not unions -for unfair labor practices
•Would still need a secret ballot election to decertify a
union
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Why Now?
•Unions represent only 7.5% of private sector employees
nationwide -down from 30% in the 1950s
•Decreased interest in unions, due to:
-Statutory protections at federal and state level
-Manufacturing jobs moving off-shore
-Shifts in job market: more mobile workforce, decline of "cradle-
to-grave"employment, emphasis on greater education and
technical skills; emphasis on individual merit and reward
-Shifts in demographics: Younger employees have been less
interested in unions; greater diversity in the workplace
•Unions failing to organize effectively: fewer employees
want what the union is selling
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Why Now (cont.)?
•25% of Democratic Convention delegates were
either union members or had household
member
•Political clout far exceeding their membership
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Top Union Leaders Say
•Unions "must all join together in a campaign like
none we've ever run"to pass EFCA and "restore
the power of working people."
-John Sweeney, President, AFL-CIO, Feb. 8, 2007
•"Unions spoke with a nearly unanimous voice:
This is their No. 1, No. 2, and No. 3 priority in the
next administration."
-Barry Broad, Teamster lobbyist, Nov. 16, 2008
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Key Legislative Leaders Say
•House Speaker Nancy Pelosi:
-EFCA is "the most important piece of labor reform in a
generation."
•Sen. Ted Kennedy:
-"Strengthening the freedom to choose a union is key
to strengthening the American middle class, and
fixing our broken system should be a top priority of
this Congress."
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And What Does Obama Say?
•"It's time we had a president who honors
organized labor, who's walked on picket lines,
who doesn't choke on the word 'union,'who lets
our unions do what they do best and organize
our workers, and who will finally make the
Employee Free Choice Act the law of the land."
-Barack Obama, Labor Day Message 2008.
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And What Does Obama Say?
•The Bush Administration has "packed the
National Labor Relations Board with their
cronies and their corporate buddies. Well,
we've got news for them -it's not the
Department of Management, it's the
Department of Labor , and we're going to take
it back!"
-Barack Obama, AFSCME Convention, August 2008
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Status of Bill
•Passed U.S. House of Representatives in March 2007:
Vote of 241-185
•Failed in the Senate in June 2007
•The EFCA will be a top legislative priority of the Obama
Administration in 2009
•During campaign, Obama promised to pass it during first
100 days
•Uncertain how the economy will affect this pledge
•Labor Secretary still not determined -choice could be a
signal
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NY Representatives Who Have
Co-Sponsored EFCA
•Anthony Weinder (D) Edolphus Towns (D)
•Vito Fossella, Jr. (R)
Carolyn Maloney (D)
•Eliot Engel (D)
Jerrold Nadler (D)
•Nita Lowy (D)
John McHugh (R)
•Michael McNulty (D)
Maurice Hinchey (D)
•Nydia Velazquez (D)
Louise Slaughter (D)
•Tim Bishop (D)
Carolyn McCarthy (D)
•Peter King (R)
Charles Rangel (D)
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NY Representatives Who Have
Co-Sponsored EFCA
•John Hall (D)
Brian Higgins (D)
•Kristen Gillibrand (D)
•Michael Arcuri (D)
•Jose Serrano (D)
•Gregory Meeks (D)
•Joseph Crowley (D)
•Gary Ackerman (D)
•Yvette Clarke (D)
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Will EFCA pass?
•Expect some version to pass -Labor's top
priority
-Immediate focus on economy, but:
•No funding needed to enact EFCA
•View EFCA as key to economic turnaround
•U.S. Chamber of Commerce launching counteroffensive,
but unions already out front
•Senate has more Democrats than last year;
Arlen Specter (R-PA) supports EFCA
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Will EFCA Pass (cont.)?
•Alternate/compromise versions
-Retain secret ballot, but have very short time to
election/decide issues of voting eligibility after petition
filed
-Allow union access to workplaces
-Increase penalties for violations of NLRA
What Would Passage of EFCA
Mean?
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More Coercion of Employees
•In 2006, more than 5,200 ULP charges were filed
against unions for "illegal restraint and coercion of
employees"
•The card check process would make already prevalent
union coercion even worse
•Under the EFCA, employees will have to publicly make
their choice, opening them up to even more intimidation
and coercion by the union and union supporters
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Union Coercion (cont.)
•Union misrepresentations -and outright lies
•Incentives to engage in coercion, intimidation,
misrepresentation:
-Cards would be the beginning, middle, and end of the
process
-No new standards under EFCA for contents, conduct,
etc.
-Cards would not be private
•No practical way to get a signed card back
•Will employers be able to challenge cards?
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Secret Ballot Elections Could
Be Eliminated Entirely
EFCA states that if more than 50% of workers sign
authorization cards, "the Board shall not direct
an election "
•Even though union organizers (not workers)
could choose to have a secret ballot election,
they probably never would
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More ULP Charges Against
Employers
•The EFCA creates a new list of ULP charges -
filed against employers -that are added to the
list of NLRB cases which must be "given priority
over all other cases"
•No additional ULP charges against unions are
added to that list
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New Penalties for ULPs
•If ULP during organizing or between certification
and first contract: back pay + 2x as liquidated
damages ( i.e ., triple damages)
•If willful or repeated, civil penalties of up to
$20,000 per ULP
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Binding Arbitration of First
Contracts
•The employer and the newly-certified union must meet
within as little as 10 days to begin bargaining
•If no CBA within 90 days, either party can call FMCS to
mediate
•If no CBA within 30 days of mediation request, referred
to arbitrator to be provided by FMCS
•No appeal of arbitrator's ruling, and the contract would
last for two years
•No right of employees to vote on contract
•"Industry standards?"
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Implications of EFCA for Employers
•Unions may be gathering cards at your
workplace now -waiting to present them as
soon as EFCA becomes law
-Do you know whether there is card signing going on
in your workplace?
-Do your employees know how you feel about unions?
-Do they know the other side of the union story?
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Implications for Employers (cont.)
•Anticipate a flurry of organizing activity unseen in
decades
-Organizing will be relatively easy, cheap, unchallenged
•Employers will want to implement a fundamental change
in mindset
-A union could be certified before an employer even knows there
is organizing
-Employers may need to be in constant "union organizing mode"
-One disgruntled employee can become very dangerous
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What Can You Do Now?
•Educate executives and managers
•Identify true NLRA "supervisors"
•Educate/train supervisors regularly
-Supervisory skills
-Basic facts about unions, impact of unionization on employer,
employer's position on unions, the unionization process, reasons for
employee interest in unions, NLRA "do's and don'ts,"and signs of
potential organizing
•Hold supervisors accountable for attending and complying with
training
•Address "problem supervisors"
-Shape up or ship out
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What Can You Do Now (cont.)?
•Educate employees
-Periodic communication to employees re: facts about unions and
unionization, organization's views on unions, what they have
now, the EFCA, significance of union cards, etc. -beginning in
orientation
•Develop an organizing "tool kit"
-Solicitation/distribution policy
-Bulletin board policy
-Camera and recording policy
-Electronic communication policy
-Statement on Unions
-Video and other materials on unions and union cards
-"Don't sign the cards"letter
-Identify most respected/effective spokespeople
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What Can You Do Now (cont.)?
•Protect lists of employee names, addresses, and phone
numbers
•Create harassment complaint mechanism
•Conduct an employee survey
•Conduct a union vulnerability audit
•Treat employees competitively and fairly -wages, benefits,
working conditions, interactions with supervisors and co-
workers
•Treat employees with respect -no harassment, no
discrimination, no favoritism, formal employee
input/involvement, listen to employees, encourage exchange
of ideas/suggestions, open door policy, monthly or more
frequent communication meetings, progressive discipline,
employee recognition, etc.