Whither the Employee Free Choice Act

The Legal Intelligencer

 By Mark Featherman

Whatever happened to the Employee Free Choice Act (EFCA)? President Obama promised to make it "the law of the land" if he was elected. Senator Majority Leader Harry Reid reaffirmed his commitment to the EFCA last fall, as did Pennsylvania Senators Robert P. Casey Jr. and Arlen Specter.

Yet the EFCA has been languishing for the past year. Turmoil in the financial sector and the focus on health care took away any momentum the EFCA had when the president assumed office. And with the recent loss of a filibuster-proof Senate, it is unlikely that the bill in its current form can be passed.

Nevertheless, calls for the EFCA's passage are increasing, and the president of the AFL-CIO recently predicted it would be passed this year. The key to its passage may lie with Specter, an original sponsor of the law, who has stated that he will not support the law as written. Specter has suggested several compromises for EFCA — and those suggestions may heavily influence any legislation that is passed.

The EFCA is a response to the concerns of progressives, unions and workers that the National Labor Relations Act (NLRA) is not achieving its statutory goal of protecting the rights of employees to engage in collective bargaining with their employers. The EFCA makes it easier for employees to organize, helps unions get a first contract and increases penalties under the NLRA.

The first and most controversial aspect of the bill is the "card check" provision. Under current law, an employer may recognize a union as the representative of its workforce upon a showing that at least 51 percent of its employees have signed authorization cards designating the union as their collective bargaining representative. However, current law also permits an employer to disregard the employees' signed authorizations and to force the employees to participate in an election process largely controlled by the employer. The EFCA would amend the NLRA so that the choice of how the union demonstrates its majority — through authorization cards or by an election — is placed in the hands of the workers. Under the EFCA, an employer would be required to recognize a union that secures authorization cards from more than 50 percent of its employees.

The EFCA also provides for mandatory interest arbitration in first contract situations. Currently, a union that wins an election has a one-year period during which the union is presumed to have majority support. After the year passes, the union can be decertified. As a result, the law as it is written actually discourages meaningful bargaining, because delaying tactics benefit the employer. One study has shown that even after a union wins an election, it does not get a collective bargaining agreement in nearly half the cases. The EFCA seeks to improve this by providing for mandatory interest arbitration in first contract situations. If the parties do not reach agreement within 120 days of the union's certification as a bargaining representative, either party can go to binding interest arbitration.

The third leg of the EFCA is the increased remedies portion. Currently, the NLRA does not permit the imposition of fines or penalties on employers that violate the law, regardless of the egregiousness of the violation or if the employer is a repeat offender. Instead, remedies are basically limited to back pay, and the posting of a notice that the employer violated the act. The EFCA changes this by providing for fines of up to $20,000 per violation for unfair labor practices committed during union organizing drives, triple back pay for workers discharged during organizing campaigns, and enhances the authority of the National Labor Relations Board (NLRB) to seek injunctions in federal court when an employer discriminates against or discharges employees during organizing drives.

Employer opposition to the EFCA has been fierce. The founder and CEO of Home Depot said retailers who don't oppose the EFCA "should be shot." The Chamber of Commerce called the battle over the EFCA a "firestorm bordering on armageddon." Opponents of the bill ran a very effective campaign against the EFCA, focusing on card check and hammering away their point that this section of the law would eliminate free and fair union elections by taking away the secret ballot.

EFCA advocates point out that the analogy to political elections is flawed, as elections under the NLRA are not free in the same way as political elections — in a union election, the employer has unlimited access to employees while unions do not, and during union elections union supporters are often harassed or even fired. Nonetheless, the argument that the EFCA takes away the right to a free election has resonated.

The business community also advocated against interest arbitration, claiming that it would be an infringement of the government into the affairs of business; one scholar even suggested it was unconstitutional. EFCA supporters point to the fact that interest arbitration is widely used in the public sector (including Pennsylvania, where the process has been used for decades for police and firefighter contracts), and is also available in seven Canadian provinces. Some researchers have suggested that the prospect of interest arbitration will give the parties incentives to reach agreement, rather than risk having a third party set contract terms. Regardless, some senators who otherwise support the EFCA have expressed reservations about interest arbitration.

With the unraveling of a filibuster-proof Senate, Specter is viewed as a crucial vote for the EFCA, and his ideas about the bill therefore matter. Originally a sponsor of the bill, Specter announced his opposition to the EFCA in May, then said he supported an amended EFCA after his Democratic conversion. Given Specter's importance, his suggested compromises may give new life to the legislation.

Specter is opposed to the card check aspect of the EFCA. In its place, Specter proposed shortening the election period and giving unions limited access to employees at the workplace. Currently, an NLRB election takes place approximately 42 days after an election petition is filed. Supporters of changing the law say this lag time disadvantages unions because employers have nearly six weeks to hold captive meetings with employees and run anti-union campaigns. Instead of a 40 to 45 day period, it has been reported that Specter has suggested shortening the time between the filing of a petition and the election to five or 10 days.

Another compromise that has been mentioned is allowing unions access to workers at the workplace and banning employer captive audience speeches. This would level the playing field, since unions are typically limited in their ability to meet with employees during a union campaign. Employers, on the other hand, can require mandatory "anti-union" meetings, force employees to meet one-on-one with supervisors, and can be forced to attend meetings right up to the day before the election. An amended EFCA could give unions some ability to meet with employees on the employer's property. Interest arbitration would also look different under a Specter EFCA. Instead of interest arbitration in which the arbitrator would have the latitude to craft a first contract, Specter has proposed "last best final offer" arbitration, as is used in professional baseball, among other places. Under this type of interest arbitration, each party tenders its last, best, final offer, and the arbitrator chooses one. This is said to encourage both sides to narrow their differences, as an arbitrator is not likely to choose one party's unreasonably high (or low) proposal.

The remedies section of an amended EFCA would likely be similar to the current bill. It is not as controversial as card check or interest arbitration. After all, even opponents to the EFCA have a hard time making the argument that current NLRB remedies deter unlawful behavior.

With job creation and health care sucking up most of the air in Washington, and the loss of Ted Kennedy's seat to a Republican, it is quite unlikely the EFCA will pass in its current form. The Specter proposals have not exactly been embraced by the labor movement, but they at least represent a step in the direction of labor law reform. Employers are still opposed to any change in the NLRA; whether labor gets behind an amended EFCA may make the difference between some reform or none at all.

Mark Featherman is a partner at the labor law firm of Willig Williams & Davidson, where he represents unions and working people. He can be reached at 215-656-3685 or mfeatherman@wwdlaw.com