Employment Free Choice Act Robert K. Robinson, PhD, SPHR Sam Causley, PhD Dave L. Nichols, PhD, CPA...

Employment Free Employment Free Choice ActChoice Act

Robert K. Robinson, PhD, SPHRRobert K. Robinson, PhD, SPHRSam Causley, PhDSam Causley, PhD

Dave L. Nichols, PhD, CPADave L. Nichols, PhD, CPAThe University of MississippiThe University of Mississippi

OverviewOverview

On the House passed H.R. 800 (the On the House passed H.R. 800 (the Employee Free Choice Act) with a vote Employee Free Choice Act) with a vote of 241 to 185.of 241 to 185. 99% of House Democrats voted for the bill.99% of House Democrats voted for the bill. 94% of House Republicans voted against it.94% of House Republicans voted against it.

On June 26, 2007 the Senate voted 51 On June 26, 2007 the Senate voted 51 to 48 to invoke cloture on the motion to to 48 to invoke cloture on the motion to consider S. 1041 (the Senate version of consider S. 1041 (the Senate version of the bill (9 votes short of the 60 votes the bill (9 votes short of the 60 votes needed), thus killing the bill for 2007.needed), thus killing the bill for 2007.

OverviewOverview

With a Democrat majority in both With a Democrat majority in both houses of Congress and a Democrat houses of Congress and a Democrat in the White House, the Employee in the White House, the Employee Free Choice Act EFCA enactment Free Choice Act EFCA enactment appears inevitable.appears inevitable.

Employee Free Choice Act Employee Free Choice Act (EFCA)(EFCA)

EFCA is a major amendment to the EFCA is a major amendment to the National Labor Relations Act which willNational Labor Relations Act which will Radically change the union certification Radically change the union certification

process.process. Impose major changes in the CBA Impose major changes in the CBA

negotiations process.negotiations process. Increase fines and liquidated damages for Increase fines and liquidated damages for

ULPs by management.ULPs by management. Both will have a major impact on Both will have a major impact on

private sector organizations operating private sector organizations operating in the United States.in the United States.

Authorization Card CampaignAuthorization Card Campaign

A A Union Authorization CardUnion Authorization Card is a card is a card that authorizes the Union to negotiate with that authorizes the Union to negotiate with an employer over your wages, hours and an employer over your wages, hours and other conditions of work. other conditions of work.

Under current law, signing a union Under current law, signing a union authorization card does NOT obligate an authorization card does NOT obligate an employee to vote for the union in a employee to vote for the union in a certification election.certification election.

Authorization CardAuthorization Card

Current State of the Current State of the Representation processRepresentation process

Showing of interestShowing of interest – the – the percentage of a proposed bargaining percentage of a proposed bargaining unit who sign authorization cardsunit who sign authorization cards

Currently the union have a minimum Currently the union have a minimum of 30% to file for of 30% to file for certificationcertification..

Unions generally look for 60-70%.Unions generally look for 60-70%. Certification process stops dead for 12 Certification process stops dead for 12

months if the union cannot get 30% within months if the union cannot get 30% within 30 days [in most cases].30 days [in most cases].

Must have a simple majority (50%Must have a simple majority (50%+1) if to seek +1) if to seek recognitionrecognition..

RecognitionRecognition

A.k.a., Card Check. If more than 50% (a A.k.a., Card Check. If more than 50% (a simple majority) of a proposed simple majority) of a proposed bargaining unit sign authorization card, bargaining unit sign authorization card, an employer may voluntarily chose to an employer may voluntarily chose to forego a representation campaign and forego a representation campaign and election and recognize the union as the election and recognize the union as the bargaining agent for his/her bargaining agent for his/her employees.employees. Must be >50% or both the employer and Must be >50% or both the employer and

the union commit a ULP.the union commit a ULP.

CertificationCertification Under Under §9, the u§9, the union must get at least a nion must get at least a

30% showing of interest.30% showing of interest. File a certification petition in a timely File a certification petition in a timely

manner (typically 30 days).manner (typically 30 days). Employer may consent to an election, or Employer may consent to an election, or

contest the petition in a formal hearing.contest the petition in a formal hearing. NLRB will set an election date.NLRB will set an election date. Both parties will campaign.Both parties will campaign. The outcome is determined a simple The outcome is determined a simple

majority of the ballots cast in a secret majority of the ballots cast in a secret ballot election.ballot election.

Current Representation ProcessCurrent Representation Process

Authorization Card Campaign

Recognition[a.k.a., Card Check]

Certification[30%]

File RecognitionPetition

File CertificationPetition

Consent Election Decree

Formal ElectionHearing

Represenatation ElectionCollective Bargaining

Begins

Change In the Recognition Change In the Recognition ProcessProcess

EFCA proposes to change the EFCA proposes to change the recognition process by:recognition process by:

(1)(1) Having the NLRB certify any union Having the NLRB certify any union receiving a showing of interest greater receiving a showing of interest greater than 50% during the authorization card than 50% during the authorization card campaign.campaign.

(2)(2) Situations in which the union receives less Situations in which the union receives less than a majority showing of interest will be than a majority showing of interest will be resolved by an secret ballot election. resolved by an secret ballot election.

In effect, all organization efforts begin In effect, all organization efforts begin as a card check.as a card check.

EFCA Representation Process if EFCA Representation Process if Showing of Interest is Showing of Interest is <<50%50%

Authorization Card Campaign

Certification[30%]

File CertificationPetition

Consent Election Decree

Representation Election

Formal ElectionHearing

NLRB Bargaining Order

EFCA Representation Process if EFCA Representation Process if Showing of Interest is >50%Showing of Interest is >50%

Authorization Card Campaign

File CertificationPetition

NLRB Issues Bargaining Order

Formal ElectionHearing

Bargaining OrdersBargaining Orders

Under the EFCA unions can demand Under the EFCA unions can demand that employers begin CBA that employers begin CBA negotiation within 10 days of negotiation within 10 days of certification.certification.

Interest Arbitration for the Interest Arbitration for the Private SectorPrivate Sector

If an impasse cannot be reovled If an impasse cannot be reovled within 90 days, either party can within 90 days, either party can request mediation from the FMCS.request mediation from the FMCS.

If mediation fails to resolve the If mediation fails to resolve the impasse within 30 days, the EFCA impasse within 30 days, the EFCA provides for binding interest provides for binding interest arbitration.arbitration.

If the contract is decided by If the contract is decided by arbitration, the bargaining unit does arbitration, the bargaining unit does not ratify the CBA.not ratify the CBA.

Time framesTime frames

10 days following certification: 10 days following certification: Bargaining order.Bargaining order.

90 days after impasses: mediation90 days after impasses: mediation 30 after mediation fails: interest 30 after mediation fails: interest

arbitration.arbitration.

Increased Civil Penalties for Increased Civil Penalties for ULPsULPs

CurrentCurrent Back pay less Back pay less

wages earned wages earned when hired by when hired by another employeranother employer

EFCAEFCA Three time back Three time back

pay (back pay plus pay (back pay plus liquidated damages liquidated damages to two times back to two times back pay)pay)

Fines not to exceed Fines not to exceed $20,000 per each $20,000 per each willful and repeated willful and repeated violationviolation

Penalties for §8a(3) violations during organizing campaigns