The First Shot Is Fired In The EFCA Battle

On March 10, 2008, the Democrats introduced the much anticipated Employee Free Choice Act (EFCA) in both congressional houses. The EFCA has been the subject of countless debates and is a controversial bill that will allow a majority of employees to form a union by signing card checked petitions. President Obama publicly supported the EFCA during his presidential campaign and has continued to support the bill since his inauguration. By introducing the EFCA so early in the session, Democrats are making it clear that labor is one of their top priorities, but businesses promise a fight to the end over this legislation. Several business leaders maintain that the EFCA's passage will have devastating effects on business, especially given the current economic times.

Although it remains to be seen if the Democrats have the votes necessary to pass the EFCA, businesses need to be prepared in case the EFCA becomes law. So what does it mean to you? If enacted, the EFCA requires certification of the union as the exclusive bargaining representative for a group of employees if the National Labor Relations Board (NLRB) finds that a majority of employees in an appropriate unit have signed authorizations designating the unit as its bargaining representative. The bill requires the NLRB to develop authorization language and procedures for establishing the validity of the signed authorizations. Currently, an employer is generally not required to recognize a union as a bargaining representative unless the union prevails in an NLRB conducted “secret ballot” election. The EFCA would eliminate the secret ballot procedure. The current secret ballot procedure often allows employers a chance to campaign against the union or at least provide the employees with a non-union prospective before a final determination to unionize is made. If the EFCA passes, a situation could be created where a union forms at a company before management even knows what is occurring.

The new EFCA legislation also provides that if an employer and a union are engaged in bargaining for their first contract and are unable to reach agreement within 90 days, either party may refer the dispute to the Federal Mediation and Conciliation Services (FMCS) for mediation. If the FMCS is unable to successfully mediate the dispute between the parties, the dispute is then referred to arbitration. The results of the arbitration are binding on the parties for two years. Time limits may be extended by mutual agreement of the parties. Currently, if a union represents employees, the law requires the union and the employer to bargain in “good faith” as to the terms and conditions of employment. Current law does not require an ultimate agreement. Unions can strike if no agreement occurs or employers can implement what they believe to be their “last best offers.” The change in the proposed EFCA legislation means that, at some point, an agreement will be in place and the terms of that agreement may have been decided by an arbitrator, not the actual parties to the agreement.

Further, the EFCA stiffens remedial measures for certain employer unfair labor practices. The EFCA requires the NLRB to seek a federal court injunction against an employer whenever: 1) there is reasonable cause to believe that the employer has discharged or discriminated against employees; or 2) threatened to discharge or discriminate against employees; or 3) engaged in conduct that has definitely interfered with employee rights during an organizing drive or first contact negotiations. The new legislation authorizes federal courts to grant temporary restraining orders or other appropriate injunctive relief. The EFCA also increases the amount an employer is required to pay when an employee is discharged or discriminated against during an organizing campaign or first contract negotiations. If such conduct occurs, the employer would owe three times back pay to the aggrieved employee.

Finally, the new legislation provides for civil fines of up to $20,000.00 per violation against employers who have willfully or repeatedly violated employees' rights during an organizing campaign or first contract negotiations. Currently, remedies for labor law violations are generally “remedial.” This change could have a significant financial impact on employers who “willfully” violate the EFCA.

Whether the EFCA will pass is still a question. What is not in question is that a significant battle over its passage looms. Business groups are currently gearing up for war, hoping to defeat the EFCA's passage. The U.S. Chamber of Commerce (USCC) is one of the fiercest opponents of the EFCA. Randall Johnson, the USCC's Vice-President of Labor, Immigration and Employee Benefits, recently told the New York Times that the fight over the EFCA will be “Armageddon.” Strasburger will monitor this important legislation, striving to keep employers up to date about the EFCA battle on Capitol Hill.