The Employee Free Choice Act
First introduced in 2003, the Employee Free Choice Act ("EFCA") was passed in 2007 by the U.S. House of Representatives. The cloture vote in the Senate, however, fell short. On Tuesday, March 10, 2009, EFCA was reintroduced in both the House (H.R. 1409) and the Senate (S. 560).
Under Section 9(a) and (c)(1)of the National Labor Relations Act ("the Act"), unions can be recognized as a group of employees' exclusive bargaining representative primarily in one of two ways:
- Secret Ballot Election: A union, upon obtaining signed authorization cards from at least 30% of the employees it seeks to represent (i.e., the "showing of interest"), can file a petition for representation with the National Labor Relations Board ("the Board"). The Board will verify the showing of interest and, after resolving any issues involving the scope or composition of the bargaining unit, conduct a secret ballot election. If more than 50% of the employees in the bargaining unit who vote cast their ballot in favor of representation, the union is certified as the employees' exclusive bargaining representative.
- Voluntary Recognition: An employer, after being shown proof that more than 50% of the employees in the proposed bargaining unit favor representation by a particular union, may choose to voluntarily recognize and bargain with the union. This method of recognition may involve a pre-negotiated neutrality and/or card check agreement which addresses the conduct of the union and the employer during the union organizing drive and the manner in which proof of majority status is verified.
The Employee Free Choice Act would amend the National Labor Relations Act in three general areas. They are:
- First, EFCA would require the Board to investigate a petition filed that alleges that a majority of the employees wish to be represented by a specified labor union. The Board would be required to certify the union as the exclusive bargaining representative, without directing an election, if it finds that a majority of the company's workers in an appropriate bargaining unit designated the union through signed valid authorizations as their collective bargaining representative. The Board would be charged with establishing guidelines and procedures for the designation of the representative by the employees, including model collective bargaining authorization language and the procedure to establish the validity of signed authorizations designating bargaining representatives.
- Second, EFCA allows either party to notify the Federal Mediation and Conciliation Service ("FMCS") that a first contract has not negotiated within 90 days of bargaining commencing, and to request mediation. If 30 days after mediation is requested or such later date as agreed to by the parties no agreement has been reached, the FMCS will refer the dispute to an arbitration board established in accordance with regulations to be promulgated by the FMCS. The arbitration panel will render a decision settling the dispute and the decision will be binding on the parties for two years, unless amended by mutual agreement of the parties.
- Third, EFCA would increase the penalties for unfair labor practices committed by employers during an organizing drive or during first contract negotiations, as follows:
- The Board would be required to seek injunctive relief in federal court against an employer whenever there was reasonable cause to believe that the employer had threatened to discharge or otherwise discriminate against an employee; threatened to discharge or otherwise discriminate against an employee; or engaged in "any other unfair labor practice . . . that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed in section 7 [of the Act]."
- EFCA also allows employees discharged or discriminated against during an organizing campaign or first contract drive to recover two times back pay as liquidated damages, in addition to the back pay owed, for a total of three times the back pay. Current damages are limited to back pay, less any interim wages earned by an employee if they are hired by another employer.
- Finally, EFCA would subject employers to civil fines of up to $20,000 per violation if the Board finds that the employer willfully or repeatedly violated employees' rights during an organizing campaign or first contract drive. In ordering civil penalties, the Board is to consider "the gravity of the unfair labor practice and the impact of the unfair labor practice on the charging party, on other persons seeking to exercise rights guaranteed by the this Act or on the public interest. There are currently no civil fines for violations in the Act.
- The Board would be required to seek injunctive relief in federal court against an employer whenever there was reasonable cause to believe that the employer had threatened to discharge or otherwise discriminate against an employee; threatened to discharge or otherwise discriminate against an employee; or engaged in "any other unfair labor practice . . . that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed in section 7 [of the Act]."