Update . . .

It appears that Congress’ attention has turned from vetting and passing EFCA to more pressing matters such as healthcare and a possible second stimulus bill—despite President Obama’s contention that a second one is not needed at present. Now, this does not mean that congress will not give EFCA its due, but it seems that, at present, it has taken a very back seat. In fact, it might be off the bus. 

EFCA’s current place in Congress means that it is not likely anything will get done before the year is over and then who knows what will happen next year with midterm elections just 11 months after the New Year. So, while we would love to track the pundits comments about EFCA, it is simply not doing any of our readers any good for us to report on what others are saying when nothing it likely to get done in Congress. To this end, we have decided to take our Blog offline. 


Taking the Blog offline does not mean that we will not continue to track EFCA, it just means that we will not be posting on a regular basis until there is. The Firm will continue to prepare its Alerts on important changes in employment and labor law and will forward such Alerts to current subscribers of the Blog.


I want to personally thank my Office Managing Partner, Theodore Eisenberg, for his support and encouragement. Jennifer DaCosta and Lee Sevier must also be given significant credit for getting this Blog off the ground, for if it were not for their leg work, what you see would not be. Many thanks also go out to Darren Rumack for his endless posts when personal matters made it difficult for me to post. Lastly, Marvin Weinberg and the rest of the Blog team has provided great support throughout the time the Blog has been up. I truly could not have accomplished as much with the Blog without them.


So, until there is more to report, we say goodbye for now.

Obama recognizes the need for compromise

President Obama said in a town hall meeting in Rio Rancho, NM that he is supportive of EFCA, but acknowledges that the Senate does not have the votes to pass it.  Obama noted that Congress will need to find a way to gain the support for passage, while at the same time perserving EFCA's core (i.e.; elimination of the secret ballot requirement under the National Labor Relations Act). This is going to be difficult to accomplish once hearings on the proposed bills get under way in Congress.

I say this because the hearings will undoubtedly include testimony from employees about the  immense pressure now placed on them by unions and union supporters to sign authorization cards and that this pressure is only likely to increase if the unions and union supporters are guaranteed to be certified once a majority of the employees sign the authorization cards.  See, now, only 30% of employees need to sign to begin the process that culminates in a secret ballot election; and a union is only certified if a majority of employees vote for union represenation. Meanwhile, the process I of takes about a month to six weeks to complete, during which time employees are free educate themselves on the pros and cons of being represented by a union.

Yes, unions and union supporters will say that this process is employer dominated and there is no way for employees to truly educate themselves when employers are holding meetings during the workday drilling into employees' heads that unionization is bad.  This arguement gives no credit to employees and their want to be educated.  The Internet and public libraries provide great access to materials for employees to become edcucated about whether or not they wish to have a third party speak for them.  Union and union supporters may counter that employees can educate themselves before signing.  While this may be true, the pressure they will face to sign and sing on the spot will be immense.

Thus, perserving the core of EFCA may not be so easy if union coercion and pressure is not adequately addressed.

Let the Games Begin . . .

On March 10, the House of Representative and the Senate both introduced the Employee Free Choice Act ("EFCA").  The much anticipated introduction was once thought to come much later in the Obama Administration, but now that the stimulus and appropriation measures are off Congress' plates it can focus on other legislation.  There seems to be very little doubt that the EFCA will pass in the House, but get much stronger opposition in the Senate.  

As this Blog has said, the EFCA is legislation that, if passed, will bring about the most drastic overhaul of private sector labor relations since 1935. The EFCA, commonly referred to as the “card-check” law, will strip employees’ rights to vote, in a secret-ballot election conducted by the National Labor Relations Board (“NLRB”), to determine whether they wish to be represented by a union in dealing with their employer. 


As the National Labor Relations Act (“NLRA”) stands now, unions can file a petition at the NLRB with only thirty percent of a given workforce “pledging” support for the union and that will trigger the secret-ballot election. The EFCA will up the requirement for filing a petition to a majority of a given workforce, but eliminate the election. Instead, by mere presentation of a majority of the given workforce “pledging” support for the union, the NLRB will certify that union as the representative of those workers in dealing with the employer. 


As if eliminating a democratic process was not enough, the EFCA includes a mandatory arbitration provision that would have an arbitration panel impose a contract upon the parties that is binding for two years. Currently the NLRA requires that the parties meet and confer in good faith, but does not require that either agree to any terms or conditions. Under the EFCA, if within 100 days from the certification the employer and union do not reach a contract covering the wages, hours and other working conditions for the given workforce, the Federal Mediation and Conciliation Service (“FMCS”) must intervene and mediate between the parties to bring them to an agreement. If the parties do not agree to a contract within thirty days of FMCS’ involvement, the arbitration panel will then decide the terms of the contract for the parties and that decision will be binding upon the parties for two year. 


We will soon begin to see the lines drawn in the sand and hear from experts on both sides as to why they favor oppose the EFCA.  As important developments arise, we will post.  We encourage readers to comment and become engaged in the debate.  We look forward to the months ahead. 




This Just In. . .

The House Education and Labor Committee Republicans provided a copy of the text to H.R. 1176: The Secret Ballot Protection Act.  Republicans on the Committee of Labor and Education.

Briefly, the Secret Ballot Protection Act seeks to amend the National Labor Relations Act in two substantative areas.  First, it will make it unlawful for an employer to recognize or bargain with a union that has not been selected by a majority of its employees through a secret ballot election conducted by the National Labor Relations Board.  Second, it will make it unlawful for a union to cause or attempt to cause an employer to recognize or bargain with a union that has not been selected in the same manner.

The Republican version is simplified and, the way I see it, will not raise as many procedural questions as the current Employee Free Choice Act.  So, now that there are competing versions of bills attempting to bring about private sector labor law reform the apt saying now is:  Game on!!

Republicans Strike Back

On February 25, Republicans submitted the Secret Ballot Protection Act (H.R. 1176) to the House floor.  The Secret Ballot Protection Act is a direct response to the Employee Free Choice Act.  The Republicans' counter would ensure that secret ballot elections are conducted by the National Labor Relations Board to determine whether employees wish to be represented by a union.  As the Republicans' stated, thier proposal is the only method that ensures a choice free of coercion, intimidation, irregluarity or illegality. 

Many have asked me when Congress will take action on the Employee Free Choice Act and what is the likely outcome.  Prior to the Republicans' pre-emptive strike with H.R. 1176, I thought that the Obama Administration might place the Employee Free Choice Act on the backburner--especially in light of the stimulus packages taking priority.  Now that H.R. 1176 is in the mix, Congress may have to take on the private sector labor reform earlier than anticipated.

Only time will tell . . .

Not Exactly True . . .

Unions are claiming that Employer opposition to the Employee Free Choice Act ("EFCA") is based on "misinformation", because the National Labor Relations Board ("NLRB ") will still be allowed to conduct its secret ballot elections.  The Unions' make it seem as though Employers are running around claiming that the secret ballot elections will be stripped completely--no, not as a practical matter.  The NLRB will still conduct secret ballot elections if the Unions want that.  However, the reality is that once Unions are given the option of having the NLRB certify a union immediately upon presentation of at least a majority of union authorization cards signed by a specific unit of employees versus waiting some 40 days, whereby employees become educated during this period, and then having a secret ballot election, Unions are going to select the certification route instead of the election route.   It really is a no-brainer that Unions will avoid, at all cost, the election route.  I mean, why do you think the Unions' have placed so much money, time and effort in seeing that the EFCA passes?  Is it because the EFCA calls for mandatory injunctions? I think not.  How about the mandatory contract arbitration?  Yeah, could be, but without a certification, there can be no representative or contract for that matter.  So, there is no "misinformation" being spread--just reality, which is that once a "card-check" certification is in place, the secret-ballot election may die. 

Dems Put EFCA on the Backburner


With the Democrat-dominated Congress already getting to work on a number of employee-friendly pieces of legislation such as the Lilly Ledbetter Act, Congressional leaders have indicated that passage of the EFCA is not their first priority. 

According to Rep. George Miller, chairman of the U.S. House of Representatives Labor Committee, the EFCA will be dealt with—in due course. 

However, according to Mr. Miller, “[T]here are things that may be more urgent because of circumstances beyond our control. That doesn't diminish the urgency I feel or the supporters of the Employee Free Choice Act feel ... I am quite comfortable that this is going to receive timely treatment…”

It remains to be seen how patient organized labor will be with the new Congress, considering how much support they provided in the last election cycle, all conditioned on the passage of the EFCA. 

EFCA Alert

Fox Rothschild Labor and Employment Department has issued an Alert on the EFCA.  If our readers are unfamiliar with the EFCA, this article is a good starting point and summary of the proposed law.

Why you don't have to hate unions to oppose the EFCA

If you are reading this blog posting, you are probably well-aware of the fact that it is on the web page of a law firm that represents management in employment matters. Here is a piece of information you do not have: This particular writer used to be a member of a union. That’s right. I was a member of a labor union and I was glad for it. After a few years anyway.

My initial reaction to starting my job and being told that all of the teachers in the NYC public school system are members of the union was, “Really? I don’t get to choose?” As I soon learned, I did not get to choose. The teachers who had come and gone before me had made the choice for me. Over the years, I came to appreciate the union. That did not, however, negate the fact that I had not chosen to become a member.

Now, with the passage of the EFCA looming in the horizon, I’ve had to think about what it means to choose union membership. If the EFCA is passed, workplaces may become unionized just by workers signing cards. That’s it. No private ballot, just your signature on a card.

Many people have questioned the freedom in that. Gone is the safety of knowing that no one will ever know where you put that “X” on the ballot. That safety seems to be important, though. It even seems to be important to Congressmen John D. Dingell (D-MI) and Henry Waxman (D-CA) who recently supported a private election in choosing the Chairman of the House Committee on Energy and Commerce. This even though they support the passage of the EFCA. (See a letter from the Alliance for Worker Freedom to Representatives Dingell and Waxman here. See how your representative voted here.) Clearly there must be some benefit to having a secret ballot election. But the EFCA supporters have lost sight of that. This new card-check process is going to come at a cost. I wonder whether they can appreciate what that cost might be. I know Congressmen Dingell and Waxman must have an idea.

Continue Reading...

Employee Free Choice Act -- Things To Avoid During Union Organizing Campaign

When faced with a union organizing drive, employers are usually quick to react, and begin an informal campaign discouraging employee membership in the union.  However, employers must be mindful of their obligations, and their employees' rights, under the National Labor Relations Act.  When faced with a union organizing campaign, remember to avoid these "TIPS":

T - Threats - Do not threaten employees that there will be a strike or they will lose their jobs because of the union. These are possibilities and must be explained as such.

I - Interrogation - Do not ask how an employee feels or intends to vote on the union question. Do not put him or her in a position where he/she must tell you his/her feelings about a union.

P - Promises - Do not promise any benefit to an employee.  It will be construed as an attempt to buy his or her vote.

S - Surveillance - Do not spy on union meetings or conversation.