Major Changes Coming to the NLRA?–EFCA:Collective Bargaining by Arbitration

Mandated Collective Bargaining Agreements.

Current Law

Under the current law, once a union is certified by the National Labor Relations Board (the “Board”) as the collective bargaining representative of the employees, the parties must meet “at reasonable times” to negotiate “in good faith” in order to reach agreement on a collective bargaining agreement. However, neither party is required to “agree to a proposal” or [make any] concession.” There is no time limit for reaching an agreement, and often the first agreement takes a number of months to complete.

When the parties are unable to agree, either party may resort to use of economic weapons like a strike or a lockout. In addition, if the parties reach true impasse–a situation like stalemate in chess, in which no movement is realistically possible–the employer may unilaterally implement its last offer.

Although there are flaws in this scheme, and it might benefit form somewhat firmer parameters, most employers and unions do reach agreement within a reasonable period of time.

EFCA Changes

The EFCA would bring a dramatic change to the process. First, the statute would require that the employer begin bargaining within ten days following a request from the union, unless the parties agree to extend the time. (Currently there is no such time limit.) The parties are then required to “meet and commence to bargain collectively” and “make every reasonable effort to conclude and sign a collective bargaining agreement.”

If the parties do not reach agreement within 90 days (or a longer time agreed to by the parties), either the union or the employer may notify the Federal Mediation and Conciliation Service (FMCS) of a dispute and request mediation. The FMCS must then “promptly” communicate with the parties and use its” best efforts,” to bring them to agreement through mediation and conciliation.

If, however, the parties are unsuccessful in reaching agreement within 30 days following the first request for mediation (a period which may be extended by mutual agreement), the FMCS must refer the dispute to an arbitration board. These arbitration boards are to be created pursuant to regulations to be promulgated by the FMCS. The arbitration panel will then render a decision settling the dispute and the decision will be binding upon the parties for a period of two years, unless amended during such period by written consent of the parties.

The Significance of the EFCA Changes

The EFCA would change the bargaining process for first contracts significantly. First, the statute imposes an unrealistically short time limit on the parties for negotiating a comprehensive collective bargaining agreement. An agreement can easily take six months or more, even when the parties are working diligently toward an agreement. Neither the union nor the employer can typically devote full time to the process. Wages, work rules, benefits, discipline and discharge, dispute resolution, seniority, promotions, and numerous other matters must be addressed and reduced to writing. Granted, the parties can agree to extend the time. However, it would be preferable to begin with a more reasonable period of time.

In contrast to the present rule where mediators need only be contacted when a work stoppage is in the offing, mediation is now imposed unless the parties can quickly craft an agreement. If mediation is not successful, a neutral third party–an arbitration board–will impose an agreement upon the parties. Although one may presume that the arbitration board will piece together an agreement from the parties’ proposals, as written the EFCA does not set out parameters for the arbitrators.

Unfortunately, there are employers who after being unionized do not bargain in good faith and they seek to undermine the process. In those circumstances, the proposed EFCA procedure or some variation on it makes sense. However, the proposed statute appears a bit too rigid for the more typical good faith negotiations.

Published in: on June 9, 2009 at 2:13 pm  Leave a Comment  
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Major Changes Coming to NLRA?–EFCA: Card Recognition

The Employee Free Choice Act

The Employee Free Choice Act (EFCA), which is highly likely to be adopted in some form by the current Congress, is the most sweeping revision of the National Labor Relations Act (the “Act”) since the Labor Management Relations Act (Taft Hartley) of 1947. There were major amendments in 1959 and 1974, but none of those reached the very core of the Act–union organizing–in the way the EFCA does.

The proposed statute, which has now been introduced into both the House (HR 1409) and the Senate (S 560) with numerous sponsors, would make three major changes to the Act. In order to provide some background for readers not familiar with the Act, I will divde the discussion into three parts.

Part 1. Union Organizing By Card Check

Under current law, if a union wants to organize the employees of an employer, it distributes union authorization cards to the members of the proposed bargaining unit. These cards authorize the union to act as the exclusive bargaining representative of the employees. If the union presents cards from over 50% of the members of the proposed bargaining unit, the employer may recognize the union voluntarily. However, in almost every instance, the employer will insist that the union file a petition for an election to be administered by the National Labor Relations Board (NLRB). Unions can simply file petitions on their own with cards from merely 30% of the members, but they rarely do so as statistically they are unlikely to win an election unless they have 50% to 75% of the employees supporting the union at the time of the filing of the petition.

Once the petition is filed the appropriate bargaining unit is determined (by the NLRB when the parties do not agree or when the proposed unit is not “appropriate”) and an election is scheduled. Then the union and the employer launch into intensive campaigns. As a broad generalization (with myriad exceptions), employers have the upper hand in such campaigns as they have greater resources. There are consulting firms, for example, that specialize in helping companies defeat a union organizing drive. In addition, employers can have captive audience speeches on work time, whereas unions generally are limited to offsite meetings.

If the union receives a majority of the votes cast in the secret ballot election on election day, it wins. If not, the employer wins and the employer can be assured that there will be no more organizing attempts by the defeated union at least for another year.

If the union does prevail, the parties must negotiate “in good faith” to reach agreement on a contract. Although most parties do so successfully, some employers will seek to drag negotiations out long enough that support for the union wanes.

The Significance of the EFCA

The EFCA as proposed introduces a radical change. Under the legislation, once a union presents the NLRB with cards signed by a majority of the employees (50% plus 1) and the Board is satisfied that the cards are legitimate, then the Board must certify the union as the collective bargaining representative without an election. The EFCA is unlikely to be adopted in its current form, as there are many vocal opponents. However, it is highly likely to pass in some form. Whatever the final bill looks like, unions will have a much easier time of organizing employees.

Employers are not always aware of union organizing campaigns until they are well underway. Consequently, if a union is able to collect signed authorization cards from over 50% of the members of the proposed bargaining unit without the employer’s being aware of the campaign, an employer could be shocked to suddenly find a union on its doorstep.

There are rationale arguments both for and against this change. The one thing that is certain, however, is that the EFCA is sure to change the landscape for employers and unions for years to come.

Published in: on June 8, 2009 at 10:22 pm  Leave a Comment  
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