Employee Free Choice Act—If at First You Don't Succeed

Employee Free Choice Act—If at First You Don't Succeed

June 2005
By C. John Holmquist Jr. The continuing decline of union membership in the United States is nothing new. As organized labor attempts to reverse this trend, it is confronted with the National Labor Relations Board (NLRB) appointed by President Bush which it feels is biased against it. Indeed, John Sweeney, President of the AFL-CIO wrote last summer that the "NLRB has been perverted into a dangerous enemy of workers' rights." In light of Bush's reelection, unions are concerned about more of the same. How concerned? Prior to the election, the AFL-CIO's organizing director said "The right to organize depends on who wins this election." A particular concern of the unions is the pending review by the NLRB of the card check – neutrality agreement procedure. An employer agrees to recognize a union when the majority of its employees sign authorization cards. During this procedure, the employer agrees to remain neutral. This procedure completely bypasses the NLRB representation procedure. Critics say that this process denies employees an important statutory right and is abused by unions through intimidation or bribery. If the pending NLRB review results in elimination or a severe restriction of this procedure, unions are once again stuck with the "enemy." As a result, unions and their supporters in Congress have reintroduced the Employee Free Choice Act. The proposed section dealing with union recognition is as follows: • If a majority of employees in a unit appropriate for bargaining have signed authorization cards, the union is certified as the bargaining representative. • There will be no election, and no opportunity to persuade employees that a union is not necessary. As a result, unions will have avoided the employer's election campaign. The unions feel that employers use the election campaign to force employees to oppose the union and that the NLRB does not enforce the statute. The creation of procedures to use mandatory bargaining, mediation and arbitration to reach an initial union contract: • Within 10 days, or as otherwise agreed from the written request of the collective bargaining representative, the parties shall meet and make every reasonable effort to reach an agreement. • After the expiration of 90 days from the date that bargaining began, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and a mediator will be appointed. • After the expiration of 90 days from the date that bargaining began with the mediator, either party can request the service to refer dispute to an arbitration board. • The arbitration board shall resolve the dispute and its decision shall be binding upon the parties for two years unless amended during that period by written consent of the parties. • This section represents a major and unprecedented change in bargaining. This procedure has the effect of preventing an employer from implementing a final offer after an impasse is reached and once it is, the union can request arbitration. New, stronger remedies will be available against employers: • Violations of this section will be subject to a mandatory injunction in federal court sought by the Board. • Triple back pay will be awarded. • A civil penalty of up to $20,000 per violation may be imposed. Analysis • Unions have increasingly used neutrality and card check agreement with third party pressure and/or corporation campaigns. This strategy has been challenged by employees. • Incorporating card checks into the National Labor Relations Act and mandatory "first contract" arbitration marks a radical change which effectively deprives an employer of its free speech rights under section 10(c) of the Act by precluding any opportunity to communicate with its employees before certification. • Since bargaining will result in arbitration, the normal willingness to "give and take" will be replaced with posturing for position in arbitration. • The legislation reflects the unions' belief that the NLRB certification procedure is fatal to successful union organizing. Under the proposed procedure, the unions would no longer have to deal with the enemy in the certification process. While the chances for passage of the proposed legislation are uncertain, it provides employers with a preview of what the ultimate goals of unions are in terms of streamlining the recognition of unions. The legislation also signals to the NLRB that increasing pressure and public attention to its decisions is almost a guarantee for the remainder of the Bush presidency. Unions hope that the increased attention to the alleged bias of the NLRB will cause it to become more moderate in its decisions. C. John Holmquist Jr. is Of Counsel in the Bloomfield Hills office of Dickinson Wright. He has been practicing in the area of labor and employment relations for nearly 30 years. For additional information, please visit www.dickinsonwright.com.
  • EMAIL
  • |
  • PRINT

RELATED PRACTICES: