Employee Free Choice Act

EMPLOYEES RETAIN "FREE CHOICE," AT LEAST FOR NOW...

Following a failed cloture motion, the so-called Employee Free Choice Act has been temporarily side-tracked. For those of you familiar with this bill, this is very good news. Proponents of the bill, however, have made clear that this is only a temporary set-back. We can expect a full-court press in the event that our next president is more sympathetic to Big Labor.

If successful, the EFCA would mean the following:

Mandatory Card-Check Recognition. The standard secret ballot election for determining union recognition would be replaced by "card-check" recognition. In other words, instead of allowing employees the freedom to confidentially vote on their representative preference, employers would be required to recognize any union able to obtain authorization cards from a simple majority of their workers.

First Contract Mediation and Arbitration. If an employer and a union are engaged in bargaining for their first contract and are unable to reach agreement within 90 days, either party can compel mediation. If the parties are unable to reach agreement following 30 days of mediation, the dispute would be referred to binding arbitration.

Stronger Penalties for Violations. The following new enforcement tools would be added to the NLRB's arsenal:

• Mandatory Applications for Injunctions: The NLRB would be required to seek a federal court injunction against an employer whenever there is reasonable cause to believe that the employer has discharged or discriminated against employees, threatened to discharge or discriminate against employees, or engaged in conduct that significantly interferes with employee rights during an organizing or first contract drive.
• Treble Backpay: Increases the amount an employer would be required to pay if an employee were to be discharged or discriminated against during an organizing campaign or first contract drive to three times back pay.
• Civil Penalties: Provides for civil fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated employees' rights during an organizing campaign or first contract drive.

We expect to see a revival of this bill sometime in the next 24 months.

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