The Employee Free Choice Act is on the Agenda
By Nick A. Nykulak
Significant changes in the law have already occurred since President Obama took office in January. These changes will present new challenges for employers and merit shop contractors. Most of these changes are being urged by organized labor in order to re-introduce labor-friendly legislation that has been held in abeyance for the past eight years.
The first change occurred when a democratic-controlled Congress recently passed the Lilly Ledbetter Fair Pay Act that changed the statute of limitations an employee has to file a complaint regarding equal pay claims to six months following the receipt of his last paycheck. President Obama signed the bill into law without hesitation.
The second change occurred when President Obama repealed Executive Orders 13202 and 13208, instituted by President Bush. These Orders banned the use of union-only project labor agreements on federally funded construction projects. After the repeal of President Bush’s Executive Orders, President Obama signed an Executive Order that encourages federal agencies to use union-only project labor agreements on federally funded construction projects. Conspicuously, the repeal of Executive Order 13202 was done just as the Economic Stimulus Package was proposed to Congress with 90 billion dollars worth of federally funded construction and infrastructure improvements.
Now, the focus of labor organizations has turned to passing the Employee Free Choice Act, or EFCA. The EFCA is a proposed amendment to the National Labor Relations Act which will: (1) eliminate an employee’s right to a secret ballot election; (2) institute new monetary penalties or substantially increase the current penalties on any employer who commits an unfair labor practice before or during the negotiation of the first contract; and (3) introduce binding arbitration into the collective bargaining process to ensure employers and labor organizations arrive at a first contract within 120 days. The primary thrust of the EFCA will allow labor organizations to convince employees to sign authorization cards that will be used to unionize employers upon presentation of these cards to the National Labor Relations Board (NLRB), instead of requiring labor organizations to establish majority status through a NLRB supervised secret ballot election.
The EFCA is designed to eliminate every employee’s democratic right to vote in a secret ballot election, eliminate the employee’s ability to change their mind about joining a union, and eliminate any time the employer might have to campaign against a union and properly educate employees about their rights before a labor union is certified as the employees bargaining representative. The EFCA is also designed to chill an employer’s response to an organizing campaign, as the EFCA imposes substantial monetary penalties on employers who commit any unfair labor practices, but not on labor organizations that do the same. The EFCA further provides that if a collective bargaining agreement is not reached between an employer and labor organization within 120 days, an arbitrator will decide the terms of the contract and what any employee will be paid. Contracts decided by arbitrators will be binding on employers and labor unions for a period of up to two years.
President Obama has already promised labor organizations that he will sign this bill into law if it makes it through Congress in its current form. For more information regarding the EFCA and how it can affect your business, please feel free to contact Alan Ross or Nick Nykulak.