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Employee Free Choice Act - EFCA
The Employee Free Choice Act (EFCA), also known as the Union Relief Act of 2009, is a proposed federal employment law that seeks to amend the National Labor Relations Act (NLRA) by making changes to the current process for employees to elect labor union representation and to the process associated with negotiating an initial collective bargaining agreement (CBA) between an employer and a newly certified union representing its employees. The EFCA also seeks to add significant penalties for certain practices that violate the NLRA. On March 10, 2009, Democrats introduced the Employee Free Choice Act (EFCA) in both houses of Congress. Although EFCA was previously presented before Congress and failed to pass, many Democrats are convinced it will pass this time, especially since it cleared the House in 2007 and obtained 51 of 60 filibuster-proof votes needed to pass the Senate. However, many also expect a battle that could last several months, with the bill’s passage possibly hinging on one or two votes. HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including labor unions and organizing Related articles on the Employee Free Choice Act Although Democrats have claimed to have the votes necessary to pass the Employee Free Choice Act, Republicans and business leaders don’t appear to be going down without a fight.Business groups also appear to be gearing up for battle. The U.S. Chamber of Commerce has been one of the fiercest opponents of EFCA. Republicans renewed the battle to preserve secret-ballot elections in union organization campaigns on February 25, 2009 by introducing the Secret Ballot Protection Act (SBPA), a proposed law to counter EFCA, in both houses of Congress. Business groups have also been very involved in fighting EFCA’s passage, and the U.S. Chamber of Commerce has been one of the bill’s fiercest opponents. The Employee Free Choice Act, which has been supported by President Barack Obama and Democratic congressional leaders, would radically alter the labor relations landscape in the United States. Learn more about preventing labor unions from organizing your company by watching the Union Avoidance Virtual Summit Employee Free Choice Act's provisions Since the bill was introduced in 2009, it was widely reported that legislators planned to drop the card check requirement portion of the bill. On June 17, the New York Times reported that several Democrats agreed to drop the card-check provision in an effort to ensure the bill’s passage. There was speculation that a compromise bill could require shorter unionization campaigns and faster elections. For example, it was reported that alleged revisions to the bill could include a requirement that union elections be held within five or 10 days of 30 percent of employees signing cards indicating they want a union. Legislators were supposedly also considering other options, including measures that would give unions more access to employers’ property and prohibit employers from requiring employees to attend “antiunion meetings.” However, details of a compromise have not yet been revealed. The EFCA also changes the bargaining process for the first CBA. If the union and the employer can't agree on the terms of the first CBA within 90 days, either the employer or the labor union can request the assistance of a federal mediator. If an agreement can't be reached after 30 days of mediation, the dispute will be referred to arbitration. Absent agreement by the employer and labor union on an initial CBA, the results of the arbitration would be binding on the parties for two years. In addition to changes in the certification and collective bargaining process, the Employee Free Choice Act adds stiffer penalties for violations of the NLRA that may occur while employees are in the process of becoming unionized or negotiating a first contract. Civil fines of up to $20,000 per violation could result if an employer willfully or repeatedly violates employees' rights during an organizing campaign or first contract negotiation. Currently, there are no civil fines for violations. The EFCA also increases the amount employers are required to pay if the NLRB determines that an employee was discharged or discriminated against during a union organizing campaign or first contract negotiation. Instead of straight back pay, which is the current law, an employer would be required to pay back pay times three as a penalty. Audio Conference: Minimize the Impact of EFCA and Unions with Powerful HR Communications Secret ballot elections vs card check Union Card Check. The first process is voluntary recognition, which involves a card-check process. In essence, a union seeking to represent a group of employees provides the employer with authorization cards signed by a simple majority (50% plus one) of the employees. The employer may voluntarily accept those cards as proof that the employees desire union representation. The National Labor Relations Board (NLRB) then certifies the union as the employees' collective bargaining representative. Secret-Ballot Election. The second process is a secret-ballot election conducted by the NLRB. This process allows an employee, a group of employees, or a union to file a petition with the NLRB and request that a secret-ballot election be conducted to determine whether employees wish to be represented by a union. Representation petitions must be accompanied by a "showing of interest" (signatures from at least 30% of the employees to be included in the employee bargaining unit) to hold an election. If a simple majority of the employees vote in favor of union representation, the NLRB certifies the union as the collective bargaining representative for the employee bargaining unit. Currently, voluntary recognition based on the card-check process isn't mandatory. Employers or employees can require that a secret-ballot election be held by the NLRB to determine whether a union will represent the employees. Free 75-minute podcast: Employment Law Experts on Obama Labor & Enforcement Agenda: a discussion by leading U.S. labor and employment lawyers who represent employers Bargaining process under current law
Related articles on the Employee Free Choice Act - EFCA- featured in HR Hero Line, HR Hero White Papers, and the Employment Law Post
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