In this election year, major issues such as the price of gas, the war and healthcare dominate stump speeches and political commentary. But missing from the election sound bites are the candidates’ positions on labor issues, such as the Employee Free Choice Act of 2007 (EFCA, H.R. 800/S. 1041). The EFCA proposes to redefine labor relations in the United States by revising the National Labor Relations Act (NLRA) in such a way that it will make it easier for unions to gain representation and force businesses into labor agreements. The EFCA obtains this result by amending one of the fundamental rights provided to employees under the NLRA—the right to participate in a secret ballot election.
Under current law, a union may file a petition for the National Labor Relations Board (NLRB) to conduct a secret ballot election after it has obtained signed authorization cards from at least 30 percent of employees in a bargaining unit. In most cases, a union will proceed to an election only if it is fairly certain that it will win. This is because, prior to an election, employers can wage persuasive and effective campaigns to counter the union’s efforts. In Fiscal Year 2006, the NLRB conducted 2,147 conclusive representation elections in which eight out of every 10 eligible employees voted. Unions won only 1,195, or 55.7 percent, of elections. Given these results, Big Labor has lobbied and garnered support for the EFCA, which seeks to amend the NLRA in two important ways.
First, the EFCA attempts to “streamline” the union certification process by enabling employees to seek union representation via a card check process. Under the EFCA, union organizers only need a majority, or 50 percent plus one, of employees to sign authorization cards, as well as confirmation from the NLRB, in order to gain representation. The EFCA expressly states that “[I]f the Board finds that a majority of the employees in a unit appropriate for bargaining have signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative…the Board shall not direct an election but shall certify the individual or labor organization…” As a result, many employees who did not want a union will have to submit to union representation.
Second, if a union receives certification from the NLRB, it may demand that the employer meet to bargain over the terms and conditions of employment. If the negotiations do not result in a signed labor contract within 120 days, the union can compel arbitration. The EFCA provides that, unless the parties agree, the arbitration will result in a binding labor agreement that will last for two years. The EFCA also imposes liquidated damages of up to two times back pay for discriminating against employees during the card check process or during bargaining. Employers who violate the EFCA would also be subject to civil penalties of up to $20,000 per occurrence.
Supporters of the EFCA have already won in the House of Representatives. On March 1, 2007, the House passed the EFCA by a vote of 241-185. On June 26, 2007, supporters of the EFCA came within nine votes of limiting the debate on the Senate floor and moving to a vote. It is likely that the EFCA will not come up for final vote in the Senate until 2009, after the general election. Regardless of who wins the White House, pundits predict that sufficient support for the EFCA exists in Congress to enact it into law.
Unions understand that without an election and an employer campaign, they will have the upper hand in securing a majority of signed authorization cards. Given that union organizers conduct card campaigns below the employer’s radar, unions are counting on the EFCA to provide them with representation rights before employers even discover the organizing activity. Unions also know that by forcing employers to go to arbitration over disputed issues within 120 days, they can gain leverage and obtain concessions from employers that they may not receive under current law.
Although unionization in Illinois fell to 14.5 percent in 2007, down from 16.4 percent in 2006, the current state of the economy and cost of living create a climate that unions can take advantage of in initiating aggressive card campaigns under the EFCA. The EFCA not only impacts large employers, but also exposes small businesses as targets of union organizers seeking to reverse the trend of declining union membership. In this important election year, there are important steps employers must take now in order to prepare for life under the EFCA.
In addition to lobbying your representatives against the EFCA’s passage, employers need to educate their managers and front line supervisors on labor relations and running an effective union avoidance program. Even more importantly, with the advent of the EFCA, managers need to be able to recognize and detect the early warning signs of union organizing and card campaigns. The EFCA has the practical effect of limiting an employer’s free speech and ability to wage a campaign against the union. Employers should take immediate steps to reassess their union avoidance programs and communicate to their employees. Under the EFCA, by the time the union completes a card check, it is too late for the employer to initiate a counter-campaign.
In combination with early detection, it is imperative that employers have in place a rapid response plan to counter card campaigns and union activity. During this election cycle, it is not enough to sit on the sidelines to see if the EFCA will take effect. Given that the EFCA has the potential to change the course of labor relations, employers must reconsider how they will respond to the threat of card check campaigns. iBi