Employee Free Choice Act – EFCA Updates

The Employee Free Choice Act was a legislative bill that was introduced into both chambers of the U.S. Congress on March 10, 2009.

The bill’s purpose was to, “ amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations , to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes. ”

The bill would have, firstly, allowed a union to be certified as the official union to bargain with an employer if union officials collect signatures of a majority of workers. The bill would have removed the present right of the employer to demand an additional, separate ballot where over half of employees have already given their signature supporting the union.  Secondly, the bill would have required employers and unions to enter binding arbitration to produce a collective agreement at latest 120 days after a union is recognized. Thirdly, the bill would have increased penalties on employers who discriminate against workers for union involvement.

The Employee Free Choice Act would have amended the National Labor Relations Act in three significant ways.

• section 2 would have eliminated the need for an additional ballot to require an employer recognize a union, if a majority of workers have already signed cards expressing their wish to have a union
• section 3 would have required that an employer begins negotiating with a union with a view to reaching a collective agreement within 90 days, and if not, the two sides will be referred to compulsory mediation, and if mediation fails, binding arbitration
• section 4 increases the penalties on employers who subject workers to detriment for being involved in a union

Currently, the NLRA  anticipates that after at least 30% of employees state their wish for union representation, a separate secret ballot will be held to confirm that the majority of employees want union representation. This only happens when there is “a question of employee representation”, or in other words, the result is contested. Undisputed petitions, when all employees and the employer agree, require no further election. However, in practice, the results of the card check usually are not presented to the employer until 50 or 60% of bargaining-unit employees have signed the cards.Moreover, even if every employee has signed cards indicating their preference to be represented by the union, an employer may demand a secret ballot, and refuse to bargain until one is held. The effect of section 2 would have been that if a majority of employees at a workplace have already put their names on cards, there would have been no further requirement to confirm the union can represent them through an additional ballot. It would have meant that an employer could not demand a further secret ballot after a majority of employees had already put their names on cards supporting union representation.

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The process of union decertification would not change under the Employee Free Choice Act, so an employer can voluntarily reject a union when a majority of employees sign decertification cards or otherwise demonstrate that they no longer want to be represented by a union, or when 30 percent of employees sign a petition to hold a secret ballot election and a majority of participants in the election vote to decertify the union.

Section 3 of the Bill provided that following a union being certified, the union could require the employer to begin negotiations for a collective agreement within ten days. If the employer and union are unable to reach agreement within 90 days, either side may take the dispute to the Federal Mediation and Conciliation Service, which has provided mediation free of charge since 1947. If the FMCS is unable to bring the parties to agreement after providing mediation services for 30 days the dispute will be referred to arbitration. The results of the arbitration shall be binding on the parties for two years. The union and employer may agree to extend any deadlines or time limits.

The Employee Free Choice Act would not have altered the existing jurisdictional standards of the National Labor Relations Board. The jurisdiction of the NLRB remains at the level set in 1959, $500,000 gross revenues for a retail business. The NLRB also requires a union to consist of a minimum of two employees who have no supervisory authority, exempting many small businesses from the increased penalties of the Employee Free Choice Act.