This week the U.S. Senate will vote on the so-called Employee Free Choice Act (EFCA), which would eliminate employees' right to vote on whether they want to be represented by a union in the workplace.
This week the U.S. Senate will vote on the so-called Employee Free Choice Act (EFCA), which would eliminate employees' right to vote on whether they want to be represented by a union in the workplace. As we discussed in a previous Legal Alert, this legislation would require the National Labor Relations Board (NLRB) to certify a union as the representative of employees whenever the NLRB finds that a majority of a company's employees in an appropriate bargaining unit have signed union authorization cards. The legislation would eliminate the NLRB’s secret ballot elections process, often referred to as the NLRB’s crown jewel, which ensures workers can express their opinion regarding union representation without coercion by either party.
Specifically, the Employee Free Choice Act:
1. Provides for certification of a union as the bargaining representative if the NLRB finds that a majority of employees in an appropriate bargaining unit have signed union authorization cards, as long as the employees are not currently represented by a union;
2. Requires mandatory mediation and arbitration if an initial collective bargaining agreement is not reached within a certain period of time;
3. Gives priority to investigations of unfair labor practices that occur while employees are seeking representation or during the period after a union is recognized until the first collective bargaining agreement is entered into;
4. Provides for back pay and up to 2 times that amount in liquidated damages if the NLRB finds that an employer has discriminated against an employee in violation of § 8(a)(3) while employees are seeking representation or during the period after a union is recognized until the first collective bargaining agreement is entered into; and
5. Provides for a civil penalty not to exceed $20,000 per violation against any employer “who willfully or repeatedly commits any unfair labor practice” under §§ 8(a)(1) or (a)(3) while employees are seeking representation or during the period after a union is recognized until a first collective bargaining agreement is entered into. This penalty is in addition to any make-whole remedies described above.
The U.S. House of Representatives approved the Act on March 1, 2007. If the Senate approves the legislation, it will go to the President, who has indicated he does not support the Act.
Employers' Bottom Line:
This week is a critical time for this legislation. Employers opposed to the EFCA may want to consider contacting their senators to urge them to vote against the legislation. If you have any questions regarding this legislation or any other labor or employment related issue, please contact the Ford & Harrison attorney with whom you usually work.