The bill was sponsored by Representative George Miller (D-CA), the House Education and Labor Committee Chair, and Senator Tom Harkin (D-MA). The legislation would amend the National Labor Relations Act to allow unions to use the “card check” process – and bypass the secure, private election format – each time they attempt to organize workers.

Background

The National Labor Relations Act currently provides two opportunities for employees to decide whether or not to form or join a union:

1. Private ballot election - When a union receives a majority of votes through a secret ballot election administered by the National Labor Relations Board, the union is certified as the sole bargaining agent on behalf of the employees, or

2. “Card check” recognition - When a union receives at least 30 percent of signed authorization cards, the employer can request that a private ballot election be held. (When a union receives at least 50 percent of signed cards, the employer can either recognize the union immediately or request an election.)

Legislation

The EFCA would dramatically change federal labor law. The legislation would allow a union to bypass the election process after collecting authorization cards from a majority of employees. Thus, employers would lose the right to request that an election be held. If enacted into law, EFCA would:

• Eliminate employees’ opportunity to vote in a federally-administered, private ballot election;
• Require binding arbitration within 120 days after a union is certified through a signed card collection process, if the employer and the union are unable to reach an agreement;
• Restrict an employer’s communications to employees about the workplace issues involved in the union organizing drive; and
• Create new fines against employers for an expanded list of unfair labor practices

President Obama has stated to labor leaders that he will sign this bill if it passes the house and senate. Let your congressman and senator know how you feel!

(The following was published by:  Ballard, Spahr, Andrews & Ingersoll LLP,  on March, 18, 2009.)

“Alternatives to the proposed legislation known as the Employee Free Choice Act (EFCA) (H.R. 1409; S. 560) have started to emerge as legislators seek to reach a compromise between labor and management interests. Congressman Joe Sestak, D-Pa., recently introduced the National Labor Relations Modernization Act (NLRMA) (H.R. 1355). Unlike EFCA, the NLRMA would apply only to employers having 20 or more employees and would not eliminate the requirement for secret ballot union elections, thereby avoiding EFCA’s controversial card check provisions.

Similar to EFCA, the NLRMA sets time limits during which an employer and the union must reach a first collective bargaining agreement and mandates interest arbitration. The NLRMA periods are longer than those under EFCA. EFCA provides a 90-day initial period, whereas the NLRMA gives the parties 120 days to reach an initial agreement. If unsuccessful after 120 days, the parties may contact the Federal Mediation and Conciliation Service (FMCS) and request the appointment of an arbitration panel.

The NLRMA contains the same penalty provisions as EFCA and requires that the National Labor Relations Board (NLRB) seek a federal court injunction against an employer for unfair labor practices. It also provides damages of back pay, plus two times that amount as liquidated damages, to an employee who is discharged or discriminated against during the period when employees are attempting to organize a union or negotiate a first contract with the employer. The NLRMA provides civil fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated employees’ rights.

Most importantly, the final sections of NLRMA add significant new provisions that would give equal access to employees for labor organizations before union elections. These NLRMA provisions require an employer to notify the designated employee representative “of any activities the employer intends to engage in to campaign in opposition to recognition of the representative.” The term “campaign” is defined broadly as “any activity undertaken to persuade employees to vote for or against representation in an election directed by the Board.”

Activities specifically listed in the bill include:

• The opportunity to have an equal number of meetings with employees.
• Making announcements to employees.
• Displaying signs.
• Distributing literature.

Failure to provide equal access would constitute an unfair labor practice.”

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Here is an example that all employers (on your company letterhead) can send their national congress and senate:

Dear Congress Person/Senator,

As your constituent and a small/medium/large business owner, I ask you to OPPOSE the Employee Free Choice Act (EFCA) and the recently introduced National Labor Relations Modernization Act (NLRMA), H.R. 1409/S. 560, HR 1409, S. 560 and HR 1355).

Particularly during this economic downturn, business owners and our employees are most concerned about these aspects of this legislation:

• Union Certification through Signed Authorization Card – EFCA would allow unions to ignore workers’ current right to a Federal government-supervised, private ballot election in union organizing drives.  The bill would force employees to make their important decision on whether or not to support a union in public-potentially in front of their co-workers, union organizers and others who have a stake in the organizing process.  By eliminating the private ballot, we believe the bill would actually take away an employee’s “free choice,” expose employees to coercion and promote a threatening work environment for employees.
• Binding Arbitration on First Contracts – The bill would end bargaining negotiations after only 120 days-90 days of negotiations and 30 days of mediation-and force a two-year binding contract on both the employer and employees.  Business owners believes that mandatory binding arbitration provides motivation for either a union or employer to engage in bad faith bargaining until the end of the negotiating period.  Finally, the EFCA would lead to an arbitrator to impose unwanted employment conditions on both employees and management.
• One-sided penalties – EFCA would establish new penalties, including back pay plus liquidated damages, on employers that discriminate against employees during organizing drives.  Yet, the bill creates no new penalties for labor organizations that engage in coercive conduct during organizing campaigns.

It is my belief that all employees deserve the privacy of a federally supervised secret ballot election for choosing a union.  Employees deserve to have a say in their workplace, and the EFCA would take away their right to vote in union elections and lead to unwanted workplace terms and conditions.
Please OPPOSE the Employee Free Choice Act and the recently introduced the National Labor Relations Modernization Act (NLRMA) (H.R. 1355). These two acts severely hinder business owners from having an opportunity to respond to day to day employee issues.  Furthermore, these additional burdens can hinder our future growth.
Sincerely,

Name
Business
# of Employees