Seek Guaranteed Success In Organizing, Mandated Contracts

When the 110th Congress convened in early January, organized labor had many legislative demands in return for helping elect a new majority and new Congressional leadership.

Labor’s agenda includes: raising the minimum wage to $7.25/hour (and possibly expanding overtime pay requirements); increasing the coverage of the Family and Medical Leave Act and requiring paid leave; expanding OSHA criminal penalties; banning employment discrimination based upon genetic information; restricting executive compensation and “offshoring” of jobs; mandating enforceable labor standards clauses in trade agreements; and other anti-business proposals.

In addition, labor will encourage Congressional oversight and investigative hearings of federal agencies, such as the Department of Labor, Equal Employment Opportunity Commission and National Labor Relations Board (NLRB). Companies that are union targets of “corporate campaigns” will also be scrutinized, using Congressional subpoena power.

“Employee Free Choice Act”

However, labor’s “top priority” is the Employee Free Choice Act (EFCA). Union leaders say that this legislation will enable them to win more union representation campaigns, increase union membership and dues income, and enhance their political and economic clout. In turn, organized labor will use its additional clout to elect more “progressives” to Congress and a pro-union candidate to the White House in 2008, so that they can pursue a more “progressive” legislative and regulatory agenda.

Quite simply, the EFCA is a forced card-check, anti-secret ballot union representation bill that would radically alter business practices and upset the balance in labor-management and employer-employee relations. The EFCA would make three major changes in the National Labor Relations Act. First, it mandates that the NLRB certify a union seeking representation rights based on signed union authorization cards (“card check”) – without a secret ballot election among employees. Specifically, the bill requires that the NLRB certify a union as the exclusive collective bargaining representative of employees where the union demonstrates that a majority of the employees have signed union authorization cards – an election is not required.

Secondly, the EFCA mandates arbitration of initial union contracts. Specifically, contract terms must be submitted to the Federal Mediation and Conciliation Service (FMCS) if the union and the employer cannot reach an agreement on an initial collective bargaining contract. In particular, the EFCA requires that: 1) parties meet within 10 days after a union makes a demand to initiate collective bargaining; 2) within 90 days, FMCS must provide mediation and conciliation services if the parties fail to agree on an initial contract and one of the parties requests the agency’s intervention; and 3) 30 days later, FMCS must refer the dispute over the initial contract to an arbitration panel with the authority to issue a decision resolving the dispute (which is binding on the employer and union for a two-year period).

Finally, the EFCA contains a panoply of new anti-employer penalties. These include prioritizing NLRB investigations of unfair labor practice charges alleged to have been committed by an employer during an organizing campaign, and possibly pursing injunctive actions in federal court to remedy any such unfair labor practice. The proposal also requires the NLRB to award liquidated damages in the amount of two times any back pay found due and owing, and it subjects an employer to a civil penalty not to exceed $20,000 per violation of the National Labor Relations Act.

The Practical Effect

The provisions of the EFCA would dramatically tilt organizing in favor of unions by eliminating an employer’s right to demand an NLRB-supervised secret ballot election to determine union representation. Currently, an employer’s recognition of a union is voluntary. If an employer does not want to voluntarily recognize a union, the employer has a right to a secret ballot election among its employees when a union claims it has a sufficient number of signed authorization cards. Instead, the EFCA mandates a less reliable “card check” authorization system, which is more easily subject to union influence and peer pressures for employees to sign authorization cards.

Under the bill, unions would gain control over the timing of the representation process. Union organizers could demand employer recognition and require NLRB certification whenever the union attains a majority of signed cards. NLRB certification of a union as the exclusive bargaining representation would be treated the same as certification based on a secret ballot election under current law; thus, following certification the union may not be challenged for the certification year. This would deprive employees or employers from seeking a subsequent secret ballot election to determine continuing union support.

Mandatory, binding first contract arbitration, in addition to guaranteeing a union contract, raises a host of other practical problems. By requiring third party arbitration, the EFCA would cause unions to be less flexible in collective bargaining, as they know that a contract will be imposed in any event. When persuading employees to organize, unions frequently over-promise future contract terms (which they are unable to deliver at the bargaining table). Currently, upon reaching impasse an employer may unilaterally institute terms and conditions of employment (as long as it has bargained in good faith). Under the EFCA, however, the terms and conditions for two years would be imposed by an outside arbitrator, during which the current “contract bar” rule prevents the union’s continuing majority status from being challenged.

Legislative Status

In the last Congress, the EFCA had 215 cosponsors in the House of Representatives (3 short of a House majority) and 44 cosponsors in the Senate. Although the bills did not receive a vote in Committee or on the Floor last year, new House Speaker Nancy Pelosi has declared passage of a reintroduced bill as an early priority, with a vote expected in the spring. Last year’s original sponsors of the EFCA – Sen. Edward Kennedy and Rep. George Miller – now chair the labor committees in the Senate and House, and they have made passage of the EFCA a “top priority” for their committees.

Last year, the unions made cosponsorship of the EFCA a “litmus test” for political and financial support in the mid-term elections. Following their success, unions are now demanding passage of the bill. Organized labor is mobilizing a massive, nationwide campaign to pressure new and returning Members of Congress to again cosponsor the EFCA. In December, the AFL-CIO and Change to Win labor federations organized a Washington rally with thousands of unionists supporting the bill, and announced formation of thousands of “steward teams” of employee activists in workplaces throughout the country to create grassroots pressures on Congress.

In short, not since the ill-fated 1977-78 Omnibus Labor Law “Reform” Bill has there been a more aggressive campaign to overhaul union organizing rules. Labor law reform passed the House and was stopped only by a one vote margin in the Senate (after a 19-day, 6-cloture vote filibuster). This coordinated commitment by organized labor and the leadership of the 110th Congress to pass the EFCA means there is a real threat of enactment.

The business community is organizing a counter-campaign, coordinated by the U.S. Chamber of Commerce and other leading trade associations and companies. Based on over 30 years’ experience in working with similar business coalitions, Ogletree Governmental Affairs, Inc., the public policy subsidiary of Ogletree Deakins, will be an integral partner in that coalition effort.

If you have questions about this legislative proposal, contact the Ogletree Deakins’ attorney with whom you normally work or Harold Coxson, Jr. or Alfred Robinson in the firm’s Washington, D.C. office at (202) 887-0855.

Note: This article was published in the Dec/Jan 2007 issue of The Employment Law Authority.

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