November Elections May Bring Changes in Union Organizing Activities
Since 1935, unions have gained representation rights of employees via a secret ballot vote conducted by the National Labor Relations Board (“NLRB”). Today, such representation elections are held on average about 40 days after the union files its petition. However, potential changes in Washington during this election cycle may fundamentally alter that process. A bill supported by a number of local and national candidates, including Senator Barack Obama (see http://www.barackobama.com/issues/economy/#labor), would allow unions to bypass the ballot box and achieve NLRB certification by collecting signature cards from a simple majority of an employer’s workforce in an appropriate bargaining unit. The bill provides that once a sufficient number of cards supporting a union are obtained and presented to the NLRB and the certification is issued, negotiations for a first contract are to begin within 10 days of a written request by the union to the employer.
Introduced most recently in February of last year as H.B. 800, the Employee Free Choice Act of 2007 (“EFCA”) would make a number of significant amendments to the National Labor Relations Act, including allowing unions to bypass the standard election process, as outlined above, and require the union and employer, if unable to reach agreement for a collective bargaining agreement after four months of bargaining, to submit the dispute to binding arbitration. That arbitration panel, supplied by the Federal Mediation & Conciliation Service, would set the terms and conditions, including wage increases and benefit plan terms, of the new contract for up to two years in duration (the full text of the bill is available at http://www.uschamber.com/NR/rdonlyres/e2ufsctu42dod4lnoebm7ohcwxkstagnpc52f
2kw53t4hlh4wsxlwgcryn2sbitw27b2igc6gyd4fl4av5bieqgnzsd/H.R.800.pdf).
The EFCA has already passed the U.S. House of Representatives and is supported by virtually all Democratic candidates running for both House and Senate seats. Even if Senator Obama is not elected and Senator John McCain, who has voted against the measure, vetoes the EFCA, there may well be sufficient votes in the Senate to override that veto in the next Congress.
Supporters of EFCA argue that it is necessary to level the playing field because employers have the advantage of better access to employees during a union organizing campaign and often harass, intimidate, or even fire employees who engage in union organizing activity (see http://www.aflcio.org/joinaunion/voiceatwork/efca/). Opponents stress that nothing should invade the sanctity of the ballot box and that doing away with union representation elections ultimately limits workers’ rights and potentially exposes workers to intimidation and coercion by union organizers and their supporters (see http://capwiz.com/chamber/issues/alert/?alertid=11197041&type=CO).
It is clear EFCA would be a radical departure from the present procedure for union organizational activities. Secret balloting conducted under the watchful eye of an NLRB official would become a thing of the past, as would the typical campaign leading up to a union vote. At present, employers and union representatives are able, subject to certain rules and restrictions to protect the integrity of the process, to discuss the pros and cons of unions with employees in the weeks leading up to an NLRB election. However, if EFCA becomes law, unions could achieve NLRB certification by obtaining signature cards for one over half of an employer’s workforce, without any notice to the employer and presumably without notice to a significant portion of the workforce itself. The future progress of the EFCA legislation and the debate over its passage will be one for business owners to watch very closely in 2009.
