Employer
Using the rationale of protecting “employee free choice,” Congress is
considering the most significant change to the nation’s labor laws in 60 years.
Under EFCA, if a union obtains signed cards from 50% plus one of an employer’s
workers, those workers would be represented by that union without the employer even
knowing that a union was being considered. Furthermore, if the employer finds the
union demands unacceptable, and cannot negotiate an agreement, a federal arbitrator
will dictate the terms of the initial two year contract without the employer having
any say.
Click below to make your voice heard to your Senator! It will only take two minutes
to impact the future.
Union Certification Process Tilted Toward Unions
Unions already prevail in the majority of certification elections under the current
system. A recent report by the Bureau of National Affairs (BNA) showed that unions
won 66.8 percent of NLRB-supervised private ballot representation elections in the
first six months of 2008. EFCA further tilts the process toward unions by making
it easier for unions to be certified, even if a majority of employees do not wish
to be represented by a union.
Under EFCA, if a union files a petition with the NLRB backed by authorization cards
signed by a majority of the employees (50 percent plus one), the Board “shall
not direct an election but shall certify the … labor organization as the
representative.” Under EFCA, the unions, following their admitted practice
of not filing a petition with less than a majority of authorization cards, would
foreclose the option of a private-ballot election. Instead, the law would mandate
that the NLRB, instead of conducting a private-ballot election, automatically certify
the union as the bargaining representative of the employees even if the employees
would prefer an election.
Unlike the current NLRB process, which typically involves a five week period in
which the employees hear all sides of the issue from the union, the employer and
their coworkers, the bill would rely exclusively on the card-signing process in
which only the union’s views are heard.
Government Arbitration
EFCA provides for mandatory arbitration (setting contract terms) for newly organized
employees if an employer and union cannot reach agreement within 120 days. Interest
arbitration is extremely rare in private-sector labor relations, and is used only
when an employer and union both voluntarily agree to have an arbitrator decide disputed
contract issues instead of resolving them through collective bargaining.
Under EFCA, a government arbitration panel — not the parties — would
write the terms of the contract. There is no assurance that the panel would have
any familiarity with the workplace and industry, even though it ultimately would
decide the rules that govern almost all aspects of employment. The contract written
by the government arbitrator would be in force for two years regardless whether
it is unfair or an economically harmful decision that costs the employees their
jobs. There is no right to appeal such a decision under EFCA.
EFCA would dramatically transform the role of arbitrators from interpreting the
contract negotiated by the employer and the union to actually writing the contract,
making critical economic decisions impacting the employer’s business model
and ability to remain competitive. Employers would be given no right of review,
and employees, already denied the right to a secret ballot election on union representation,
would further be denied the right to vote on the contract mandated by the arbitration
panel.
New Penalties for Employers but Not Unions
The bill abandons the traditional “make whole” approach of the NLRA
by adding new and enhanced enforcement provisions and penalties in situations where
employees are being organized or first contract negotiations are taking place. Make
whole means the employee is put back in the same position and paid the same amount
of money (“backpay”) as if the employer had not violated the law.
EFCA would provide for liquidated damages of three times back pay if employers were
found to have unlawfully terminated pro-union employees. Under current law, the
employer only owes back pay. EFCA also would impose a $20,000 penalty on the employer
each time the NLRB and/or a court decides the violation was willful or repetitive
and the violation occurs either while the union is seeking to organize the employer’s
employees or the while the employer and union are negotiating the initial contract.
Significantly, these provisions would only apply to employer — not union —
violations, even though unsupervised card check organizing lends itself to coercive
union tactics. In other words, the penalty provisions in EFCA are completely one-sided.
Click below to make your voice heard to your Senator! It will only take two minutes
to impact the future.