Section Review

A Close Look at the Employee Free Choice Act From the Perspective of Union Counsel[1]

When Congress passed the Wagner Act of 1935 - to be known later as the National Labor Relations Act ("NLRA") - it could have directed the federal government to maintain a neutral posture toward unions and workers' efforts to form unions. Instead, Congress made clear its belief that a free and robust workforce, organized through unions, was a necessity for a healthy economy, stating: "It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce … by

Despite Congress's intent to empower workers, court decisions have elevated employers' property rights in their business premises and operations over workers' rights to organize. Thus, the principle that property rights are sacrosanct has trumped Congress's intent. Employers have found ways around the NLRA's protections for organizing and bargaining, with the result that organized labor has been in decline for several decades.

Introduced as a means to reinvigorate the labor movement, the Employee Free Choice Act ("EFCA")2 currently before Congress aims to address the most prominent systemic problems that have undercut employees' rights to act collectively through unions under the NLRA. This article summarizes why each of the three major components of the EFCA will help to at least level the labor relations playing field and restore some fairness to the process of workers forming and negotiating through unions.

encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization and designation of representatives … for the purpose of negotiating the terms and conditions of their employment … ." 29 U.S.C.A. § 151 (1998) (emphasis added). That language did not change when the Taft-Hartley Act passed in 1947, and has never changed since.

Majority Signup or "Card Check"

Much of the attention that the Act has received has focused on its majority signup or "card check" provisions. Those provisions would allow a union to be certified as the exclusive bargaining agent for a group or "unit" of employees based upon a showing of support - typically via signed authorization cards - of 50% of the employees in the unit. This system is certainly not new, having been explicitly upheld by the U.S. Supreme Court as a valid expression of worker choice, most prominently in

When one considers the backdrop against which union certifications currently take place, the significance of the Act's majority signup provisions becomes evident. Employers understand that they benefit from resisting and delaying an election. As an empirical matter, the passage of time works against a union, as employers subject their workforce to a parade of horribles should they select union representation, and employees grow increasingly uncomfortable with the uncertainty and contention surrounding the election process.

Opponents of the Act self-servingly contend that its passage will erode the democratic system of Board-sanctioned secret ballot elections. That contention is seriously flawed. First, a growing body of scholarship suggests that secret ballot elections under the Board's regime bear few of the hallmarks of democratic process, largely due to aggressive, often illegal employer anti-union tactics.

Second, under EFCA, employees retain their ability to choose between majority signup and a Board-sanctioned elections: employees not wishing to proceed via majority signup can simply decline to sign an authorization card. If a union receives less than the majority of signatures required for recognition, it then must petition the Board for an election.

Third, at least under current Board law, an employer could still force an election even after a union's showing of majority support, so long as a 30% minority of employees dissents from the majority. In

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The NLRA, for its part, is silent as to the method by which a union may be certified. Section 9(a) of the NLRA merely refers to "[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees … ." See also United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62, 72 n.8 (1956) ("Board election is not the only method by which an employer may satisfy himself as to the union's majority status"). See James J. Brudney, Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms, 90 Iowa L. Rev. 819, 868 n.244 (2004). One oft-cited study suggests that a union's chances for success in an election drop by .29% for each day of delay in an election campaign. Paul C. Weiler, Promises to Keep: Securing Workers' Rights to Self Organization Under the NLRA, 96 Harv. L. Rev. 1769, 1777 (1983) (citing Roomkin & Juris, Unions in the Traditional Sectors: the Mid-Life Passage of the Labor Movement, 31 IRRA Proceedings 212, 217-18 (1978)). The Act seeks to correct for that advantage by reinforcing majority signup as an alternative certification method.E.g., Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing, Econ. Policy Inst. Briefing No. 235 (2009) (empirical data from Board certifications and election campaigns between 1999 and 2003 demonstrates that employers' "threats, interrogation, surveillance, and harassment ha[ve] ensured that there is no such thing as a democratic 'secret ballot' in the NLRB certification election process"). Indeed, proponents of unions work under a severe disadvantage even when the employer hews to the law in its anti-union campaign. Unlike democratic elections, Board elections afford the employer dramatically unequal access to voters and campaign media via perfectly legal "captive audience" meetings on company time, and use of the employer's email and other communications systems, where the union must rely on off-site contact with workers who choose to attend meetings in their free time, and are denied use of the employer's communications system. See Gordon Lafer, American Rights at Work, Free and Fair? How Labor Law Fails U.S. Democratic Election Standards (2005).Dana Corporation, 351 N.L.R.B. No. 28 (Sept. 29, 2007), a contentious 3-to-2 decision, the Board threw out a decades-old rule by which a union obtaining certification by means of majority signup was presumed, for one year, to continue to have the support of a majority of the employees in the bargaining unit. Under pre-Dana Corp. precedent, during that year, legal challenges to the union's majority status were barred. The Dana Corp. Board, however, held that no election bar will be imposed after a card-check recognition unless (1) employees receive 45 days' notice of their right to file or support a decertification, and (2) no valid petitions are filed within those 45 days. Dana Corp. at 1. A decertification petition with the support of only 30% of employees would force an election, and that 30% could include employee signatures obtained before as well as after the employer's recognition of the union. Id. Although Dana Corp. has been condemned as an unnecessary, overreaching change to a longstanding rule by a pro-employer board,3 it will remain a check on majority signup systems even if EFCA passes, at least until reversed by a subsequent Board or by legislation.

First Contract Arbitration

Currently, once the union is certified, the employer has little incentive to conclude - or even begin - negotiations for a first collective beginning agreement. The NLRA provides no penalty for delay. Although a union may bring a charge of unfair labor practice concerning the employer's bad faith failure to bargain, the Board's resolution of the charge often takes years and, even if successful, results only in an order requiring the employer to bargain. Moreover, even during negotiations the employer often continues its anti-union campaign to erode workers' support for the fledgling union.

The Act would reshape the current model for first-contract bargaining by requiring parties to submit to binding arbitration if no contract is reached after ninety days of unsuccessful negotiations and thirty days of mediation. An arbitration board convened under Federal Mediation and Conciliation Service rules would hear the matter, and issue a decision binding the parties for two years. Similar systems operate in Canada. See, e.g., Roy Adams, The Employee Free Choice Act: A Reality Check, Labor & Employment Relations Assn., Proceedings of the 58th Annual Meeting (2006).

Notably, EFCA "mandates" arbitration only insofar as the parties do not successfully negotiate on their own within the Act's time limits - all of which are malleable. The clock does not start running, in any event, until the union specifically requests action on the employer's part, and even then, each time period may be extended by mutual agreement.

See, e.g., Ronald Meisburg, Nat'l Labor Relations Bd., Additional Remedies in First Contract Bargaining Cases, Memorandum GC 07-08 (May 29, 2007) ("[h]igh impact violations during first contract bargaining" may result in "seriously damaged collective-bargaining relationship that is less likely to achieve the good-faith bargaining necessary to reach a first contract"). As a result, many newly certified unions never secure a first contract. See generally John-Paul Ferguson, The Eyes of the Needles: A Sequential Model of Union Organizing Drives, 1999-2004, 62 Indus. & Lab. Rel. Rev. 3 (2008).

Enforcement and Penalties

EFCA's provisions for increased enforcement - perhaps least contentious because even management advocates recognize the relative toothlessness of the NLRA's enforcement mechanisms - may also be the one most likely to have immediate effects on unions and union campaigns.

Currently, an employee fired in violation of the NLRA is entitled to no more than simple backpay, less interim earnings, which might total a few thousand dollars or less for a given employee. Consequently, an employer can fire its most activist employees as long as it can afford to pay the relatively small back pay awards that might result.4 In effect, employers can buy - cheaply - the power to violate the law.

EFCA's expanded enforcement provisions contemplate three basic changes, all of which apply only to violations during an organizing campaign or during first-contract negotiations. First, EFCA would allow for awards of triple back pay, bringing the NLRA more in line with other statutes within the corpus of federal labor and employment law. Second, the Act would deter repeated violations by imposing civil penalties of up to $20,000 per willful or repeat violation. Third, the Act would

Some commentators cavil that these provisions are "one-sided," i.e., they only increase penalties applicable to employers, not those applicable to unions. But this is easily answered: employers, not unions, have routinely used their greater resources to undermine the bargaining relationship and manipulate the Board's adjudication system. Furthermore, the Board is

A better observation would be that EFCA's increased remedies and civil penalties do not go far enough, in that they fail to address the Board's pervasive administrative problems, which will continue to impede enforcement of labor rights. Those problems, however, would be better fixed by executive attention to the agency itself.

See 153 Cong. Rec. S4175 (daily ed. Mar. 29, 2007) (statement of Sen. Kennedy) (current penalties for NLRA violations "are so minor that employers treat them as just another cost of doing business"). This very limited remedy compares unfavorably to the punitive and/or multiple damages available under other federal statutes affecting the workplace, such as Title VII of the Civil Rights Act of 1964 and the Fair Labor Standards Act. Worse, the NLRA currently contains no provision to deter "repeat offenders," i.e., employers who systematically fire or otherwise retaliate against employees for supporting a union. Although the Board possesses injunction powers under § 10(j) of the NLRA, as a practical reality, those powers have rarely been invoked. See Arthur Rosenfeld, Nat'l Labor Relations Bd., End-of-Term Report on Utilization of Section 10(j) Injunction Proceedings, June 1, 2001 through December 31, 2005, Memorandum GC 06-02 (2006) (only seventy § 10(j) injunctions approved between 2001 and 2006).require the Board to seek injunctive relief where there is "reasonable cause" to believe that the employer has discriminated against workers for exercising NLRA-protected rights.already required to seek injunctions against unions for certain kinds of strikes and boycotts involving third-party businesses; EFCA's injunction requirements would merely create a category of employer behavior subject to the same treatment, once again leveling the playing field.

Conclusion

The Employee Free Choice Act is represents a significant step toward much-needed reform in an area of law where, increasingly, workers must measure "victory" merely in terms of preserving the status quo. It restores some balance in American labor relations, though in the view of labor's advocates, it does not go far enough. Given the realities of power politics in Washington, it remains to be seen whether it will pass as drafted or will be seriously watered down in the legislative process.

 

Notes

1.  The authors acknowledge the assistance of Vincent Roger and Vail Breed in preparing this article.

2.  H.R. 1409, 111th Cong. (2009); S. 560, 111th Cong. (2009).

3.  For example, even if the "card check" system has its flaws, procedures exist to safeguard employee rights and curb any union misconduct. A union that coerces employees into signing cards, for example, violates § 8(b)(1)(A) of the NLRA.

4.  Indeed, because back-pay damages are subject to mitigation, and because most non-union workers earn low level wages, the net damages awarded to the individual worker often are substantially smaller than the wages the employer would have paid if the worker had not been fired in the first place.

See Dana Corp. at 16. Likewise, a union that accepts recognition without actually having majority support violates the Act, and the Board can order an employer to cease and desist from bargaining with a minority union. Id.

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