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

Overview On the House passed H.R. 800 (the Employee Free Choice Act) with a vote of 241 to 185. On the House passed H.R. 800 (the Employee Free Choice Act) with a vote of 241 to % 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 to 48 to invoke cloture on the motion to consider S (the Senate version of the bill (9 votes short of the 60 votes needed), thus killing the bill for On June 26, 2007 the Senate voted 51 to 48 to invoke cloture on the motion to consider S (the Senate version of the bill (9 votes short of the 60 votes needed), thus killing the bill for 2007.

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

Employee Free Choice Act (EFCA) EFCA is a major amendment to the National Labor Relations Act which will EFCA is a major amendment to the National Labor Relations Act which will Radically change the union certification process. Radically change the union certification process. Impose major changes in the CBA negotiations process. Impose major changes in the CBA negotiations process. Increase fines and liquidated damages for ULPs by management. Increase fines and liquidated damages for ULPs by management. Both will have a major impact on private sector organizations operating in the United States. Both will have a major impact on private sector organizations operating in the United States.

Authorization Card Campaign A Union Authorization Card is a card that authorizes the Union to negotiate with an employer over your wages, hours and other conditions of work. A Union Authorization Card is a card that authorizes the Union to negotiate with an employer over your wages, hours and other conditions of work. Under current law, signing a union authorization card does NOT obligate an employee to vote for the union in a certification election. Under current law, signing a union authorization card does NOT obligate an employee to vote for the union in a certification election.

Authorization Card

Current State of the Representation process Showing of interest – the percentage of a proposed bargaining unit who sign authorization cards Showing of interest – the percentage of a proposed bargaining unit who sign authorization cards Currently the union have a minimum of 30% to file for certification. Currently the union have a minimum of 30% to file for certification. Unions generally look for 60-70%. Unions generally look for 60-70%. Certification process stops dead for 12 months if the union cannot get 30% within 30 days [in most cases]. Certification process stops dead for 12 months if the union cannot get 30% within 30 days [in most cases]. Must have a simple majority (50%+1) if to seek recognition. Must have a simple majority (50%+1) if to seek recognition.

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

Certification Under §9, the union must get at least a 30% showing of interest. Under §9, the union must get at least a 30% showing of interest. File a certification petition in a timely manner (typically 30 days). File a certification petition in a timely manner (typically 30 days). Employer may consent to an election, or contest the petition in a formal hearing. Employer may consent to an election, or 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 majority of the ballots cast in a secret ballot election. The outcome is determined a simple majority of the ballots cast in a secret ballot election.

Current Representation Process Authorization Card Campaign Recognition [a.k.a., Card Check] Certification [30%] File Recognition Petition File Certification Petition Consent Election Decree Formal Election Hearing Represenatation Election Collective Bargaining Begins

Change In the Recognition Process EFCA proposes to change the recognition process by: EFCA proposes to change the recognition process by: (1) Having the NLRB certify any union receiving a showing of interest greater than 50% during the authorization card campaign. (2) Situations in which the union receives less than a majority showing of interest will be resolved by an secret ballot election. In effect, all organization efforts begin as a card check. In effect, all organization efforts begin as a card check.

EFCA Representation Process if Showing of Interest is <50% Authorization Card Campaign Certification [30%] File Certification Petition Consent Election Decree Representation Election Formal Election Hearing NLRB Bargaining Order

EFCA Representation Process if Showing of Interest is >50% Authorization Card Campaign File Certification Petition NLRB Issues Bargaining Order Formal Election Hearing

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

Interest Arbitration for the Private Sector If an impasse cannot be reovled within 90 days, either party can request mediation from the FMCS. If an impasse cannot be reovled within 90 days, either party can request mediation from the FMCS. If mediation fails to resolve the impasse within 30 days, the EFCA provides for binding interest arbitration. If mediation fails to resolve the impasse within 30 days, the EFCA provides for binding interest arbitration. If the contract is decided by arbitration, the bargaining unit does not ratify the CBA. If the contract is decided by arbitration, the bargaining unit does not ratify the CBA.

Time frames 10 days following certification: Bargaining order. 10 days following certification: Bargaining order. 90 days after impasses: mediation 90 days after impasses: mediation 30 after mediation fails: interest arbitration. 30 after mediation fails: interest arbitration.

Increased Civil Penalties for ULPs Current Back pay less wages earned when hired by another employer Back pay less wages earned when hired by another employer EFCA Three time back pay (back pay plus liquidated damages to two times back pay) Fines not to exceed $20,000 per each willful and repeated violation Penalties for §8a(3) violations during organizing campaigns