Employee Free Choice Act (EFCA) Summary
The purpose of the Employee Free Choice Act (EFCA) Blog is to inform readers about the dangers of the EFCA. The EFCA is proposed legislation that would amend the National Labor Relations Act (NLRA) and bring about the most drastic overhaul of private sector labor relations since passage of the NLRA in 1935. While the EFCA is being touted as promoting employee "free choice", it actually strips employees of their free choice.
Employee Free Choice Act: (proposed legislation)
1. “Card Check” Certification: If the National Labor Relations Board (“NLRB”) finds that a majority of an employer’s employees have signed union authorization cards, the NLRB can certify that union as the exclusive bargaining representative without holding an election. While the law requires the NLRB to adopt model union authorization card language which purportedly informs employees of what they are signing, there are no real safeguards in the new law to deter unions from fraudulently misrepresenting what the employees are signing from intimidating them to gain their vote. Under current law, employees are permitted a period of time, traditionally 35 to 42 days in which to gather information from both their employer and organizing union in order to make an informed choice in an NLRB conducted secret-ballot election to determine whether they wish to be represented by a union.
2. Contract Mediation and Arbitration: The new law states that when an employer and union are negotiating for their first contract and no agreement is reached within 90-days, either party may ask the Federal Mediation and Conciliation Service (“FMCS”) to mediate the negotiations. If the parties cannot agree on a contract after 30-days from the involvement of the FMCS, an arbitrator will be appointed to decide the terms of the agreement and that arbitrator is not bound by any of the prior negotiations or salary caps in deciding the terms of the contract. Furthermore, whatever the arbitrator says are the terms of the contract will govern the employees terms and conditions of employment for a minimum of 2 years. Currently, the NLRB nor an arbitrator can carte blanche impose terms of an agreement upon the parties.
3. Increased Employer Penalties for Violations: The Employee Free Choice Act (“EFCA”) includes the following increased penalties for any employer that is found to violate the law during a union organizing campaign or while the parties are negotiating a first contract with the union certified on the basis of a card check:
a. Triple Damages: If an employer discharges or discriminates against an employee during a union organizing drive or first contact negotiations because that employee engaged in union activities, the employer is required to pay three times the amount of current damage award.
b. Civil Penalties: Provides for fines of up to $20,000 per violation against employers who willfully or repeatedly violate employees’ rights during an union organizing drive or first contract negotiations.
c. Mandatory Applications for Injunctions: Provides that the NLRB must seek an injunction against employers when there is reasonable cause to believe they have interfered with a union organizing drive or first contract negotiations.
