One likely result of the recent Presidential and Congressional elections is that the executive and legislative branches will be open to pushing the legislative agendas of organized labor.  There is little doubt that the proposed Employee Free Choice Act, H.R. 800, 110th Cong. (2007)(“EFCA”) is at the top of this legislative agenda.  The EFCA is something to which employers should pay serious attention.  If enacted, the EFCA would make it easier for employees to form, join, or assist labor organizations and would provide for mandatory injunctions for unfair labor practices during organizing efforts and for other purposes.  Moreover, if enacted, certain unions are already estimating that they will be able to organize millions of new workers.

The EFCA seeks to amend the National Labor Relations Act (which was last amended nearly 70 years ago) and provide new, more relaxed, rules for the selection of an employees’ collective bargaining representative (i.e., unions).

Under the current National Labor Relations Act, employees select a bargaining representative through a secret ballot election process. Generally, in order to get to an election, a union seeking to represent employees must show the National Labor Relations Board that there is a sufficient showing of employee interest in favor of the union.  Unions typically show there is an interest in the union by collecting employee signatures or signed authorization cards from 50% – 75% of employees.

The union then files a representation petition with the National Labor Relations Board.  Approximately five weeks later (sometimes sooner), the Board conducts a secret ballot election, and all the effected employees are allowed to cast ballots in favor of, or against, the union.

During the period leading up to the election, both the union and the employer typically “campaign” and state their cases regarding union representation.  However, employers are bound by the “TIPS” rules and may not threaten (“T”), intimidate (“I”), or make promises (“P”) to employees to encourage them to vote against the union and employers may not spy (“S”) on employees. Unions are not similarly bound.

In order for a union to be designated the employees’ collective bargaining representative, the union must win a majority of the votes cast in a secret ballot election. (Again, the National Labor Relations Board conducts the election.)  Following the secret ballot election, if a union is certified as the employee representative, the employer and the union are then required to bargain in good faith over a collective bargaining agreement.  However, the National Labor Relations Acts does not require either party to agree to anything. The EFCA changes all that.

Among other things, the EFCA eliminates secret ballot elections. I nstead, once a union collects authorization cards from a majority of the employees, the National Labor Relations Board would certify the union as the employees’ bargaining agent without an election.  The employer would not be allowed to state its case to its employees, and employees would not be allowed to cast ballots in secret, away from peer pressure and intimidation.

The EFCA would also severely impact the bargaining process.  Under the Act, the parties would have 90 days to reach an initial contract.  If an initial contract is not reached in 90 days, the parties would then have an additional 30 days to reach an agreement with the assistance of the Federal Mediation and Conciliation Service (“FMCS”). If the parties are unable to reach an agreement after 120 days, the issue would be submitted to binding arbitration, and an arbitrator (not the parties) would determine the terms of the initial contract, and the parties would be bound for two years.  Even more problematic is that the EFCA is not helpful on the procedure of these proposed arbitrations.  The Act relies on the FMCS to promulgate proposed rules and receive comments on the arbitrations. None of this has been done. Thus, if enacted, the EFCA would leave more questions than answers.

Finally, the EFCA adds civil penalties and increased back pay for certain unfair labor practices.  The bill would require the NLRB to seek a federal court injunction against an employer whenever there is reasonable cause to believe that the employer has discharged or discriminated against employees, threatened to discharge or discriminate against employees, or engaged in conduct that significantly interferes with employee rights during an organizing or first contract drive.  The EFCA also authorizes the courts to grant temporary restraining orders or other appropriate injunctive relief.  The bill also calls for increases in the amount an employer is required to pay when an employee is discharged or discriminated against during an organizing campaign or first contract drive to two times back pay as liquidated damages, in addition to the back pay owed, for a total of three times the back pay.  Current damages are limited to back pay, lest any wages earned by an employee if they are hired by another employer.  Last, the bill would provide for civil fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated employees’ rights during an organizing campaign or first contract drive.  Currently there are no civil fines for violations.

The history of the EFCA shows it already has much support. On March 1, 2007, the House of Representatives passed the bill, 241 to 185. On March 30, 2007, Senator Ted Kennedy (D-MA), Chairman of the Senate Committee on Health, Employment, Labor, and Pensions, introduced the Senate version of the EFCA (S. 1041).  The Senate on June 26, 2007 voted 51 to 48 on a Motion to Invoke Cloture on the Motion to Proceed to Consider H.R. 800 (the House version). Because 60 votes were needed to invoke cloture, the bill did not pass during the 110th Congress.

It is even more likely that the EFCA will pass in some form during the 111th Congress.  President-Elect Barack Obama co-sponsored S. 1041 and promised to sign the EFCA should he become President. Democrats have increased their majority in the Senate.  After the defeat in the 110th Congress, proponents of the EFCA, such as Senator Kennedy and John Sweeney (President of the AFL-CIO), were quoted as saying they will continue to push this piece of legislation.

The Employee Free Choice Act is a hot item.  Unions have rallied and are pushing for passage of the Act. Likewise, business leaders are equally energized and have spoken out against the legislation. F or the time being, the outcome does not look good for employers.  Employers are encouraged to monitor the Act and lobby for either a complete defeat or an Act in a final form that is not as harsh toward employers as is the current Act.