Setting The Record Straight On The EFCA

Tuesday, September 1, 2009 - 00:00

Editor: Please tell our readers about your general practice area.

Stock: I represent employers in many different industries in all aspects of labor and employment law and immigration law. I am based in New York City, but handle workplace matters all over the United States.

Editor: For the first part of this interview, we have posed various provisions of the proposed Employee Free Choice Act to Ms. Stock and asked for her views of how these measures, if enacted, would affect management-labor relations. According to recent publicly available reports, legislators are discussing revisions to the EFCA in which key provisions would be changed, added or eliminated in an effort to arrive at a compromise. It appears that the compromise involves elimination of the card-check provision, but inclusion of one or more of the following provisions.

Editor:Based on your experience, explain the extent to which such provisions would be harmful to business:



Authorizing an arbitrator from the Federal Mediation and Conciliation Service to force a settlement if management and the newly certified union are unable to fashion an agreement after 90 days of bargaining and a subsequent 30-day mediation period. The FMCS arbitration panel would dictate all terms of a contract, from wages and work schedules to vacation time and health benefits, and all decisions would be final, not subject to appeal.

Stock: After the card-check provision in the original proposal, this provision is the most harmful to business. First, it is extremely unrealistic for the parties to come to an agreement in 90 days - especially first collective bargaining agreements. First collective bargaining agreements are always extremely difficult to reach agreement on because it is the first agreement between management and the union and all terms and conditions of employment and every single aspect of the bargaining relationship have to be agreed upon. Over the years, many things get added to collective bargaining agreements and they may grow to a couple of hundred pages. The result here, because of the short time frame, is that virtually all negotiations will go to FCMS arbitration. Having most private employer negotiations go to FCMS arbitration would be a very radical change in the collective bargaining relationship and NLRA law. Having an FMCS arbitration panel dictate the terms of most collective bargaining agreements, taken with the other provisions proposed in this bill, runs contrary to the provisions of Section 8(d) of the National Labor Relations Act, which requires good faith negotiation by both parties, but doesn't compel agreement to particular terms or the making of concessions. The FCMS panel will simply impose terms on the parties and eviscerate Section 8(d). The other problem with having an FMCS panel dictate the terms of a collective bargaining agreement is that there is no guarantee that the arbitrators will be experts in the company's industry, and they may not have an understanding of the common work rules and economics of production in that industry. They would also have no knowledge of the specific requirements and circumstances of a particular company.



Requiring elections to be held within five to ten days after 30 percent of workers signed cards favoring the union

Stock: Providing such a short period of time between the card signing and the election has two main problems. First, it is obviously designed to eliminate the ability of an employer to launch its own political campaign and is tantamount to eliminating an election where employees are knowledgeable about both sides of the issue. An employer would have no time to launch its own campaign to answer the union claims. You have to remember that during the card- check process the union has been speaking to employees for months under the radar about unionization and about the benefits they believe will accrue when they represent the employees. The employer may only find out that a union has been organizing and speaking to employees after the union has filed an election petition. If there is only a five- to ten-day period between finding out about an organizing drive and an election, the employer will not have the opportunity to answer these claims and educate employees in its own political campaign and would effectively eliminate any ability for the employer to get its own message out. Second, one of the issues that often comes up when a union files an election petition is the appropriateness of the collective bargaining unit and whether the group of employees that the union has designated as the bargaining unit to represent it is the appropriate one. When one has an election after a reasonable amount of time after the petition has been filed, those issues can be ironed out before the election. With only five to ten days before an election after the petition has been filed, those issues are not likely to be resolved. I'm sure there would be a lot of fighting about the election after-the-fact as to the appropriateness of the bargaining unit as well as the validity of the ballots.



Requiring employers to provide union organizers equal access to company property

Stock: That is very problematic for a variety of reasons. What does "equal access" mean? Does it mean that a union could be on a company's property all day long because an employer is there all day long? What type of access must be provided? This would completely disrupt the work day and work operations. The other issue is that this provision is just not necessary because unions have access to employees in a variety of ways that employers don't. For instance, a union representative can visit an employee's home to discuss unionization, while the employer cannot. Union representatives can say many things to employees that employers cannot. I don't think additional access to company property is necessary for unions to get their message across.



Barring mandatory employee meetings held by the company

Stock: The National Labor Relations Act does not bar an employer from exercising its first amendment rights by expressing its opinions to its employees. This new proposed provision barring employee meetings would limit and restrict such first amendment rights. The other issue is that it would be very difficult to implement and would expose employers to false unfair labor practice claims. For instance, a union could claim that every conversation between a supervisor and an employee in which the subject of the union is brought up is an unlawful mandatory meeting. I think that this would be a weapon to try to create unfair labor practice charges, thus laying the groundwork for a possible order for union recognition and bargaining.



Increasing penalties if employers break the law in fighting union activities, such as imposing triple back pay to employees who are unlawfully discharged or discriminated against while involved in union organizing activity or in the period before the first contract

Stock: That provision would certainly impose a very expensive penalty and may possibly have a chilling effect that would prevent certain unlawful activity. But this area is very fact intensive, and often counterintuitive, as to when an unfair labor practice actually occurs. Employers that are not knowledgeable about this area of law can blunder into unfair labor practices without the actual intent to do anything unlawful. The problem with this provision is its one-sidedness. If the penalties against employers are increased, there should be an increase in penalties to unions for their unfair labor practices as well.


Civil fines of up to $20,000 per violation if an employer is found to have willfully or repeatedly violated employees' rights during an organizing campaign or while bargaining for a first contract

Stock: As in my answer to the previous question, this provision is again one sided; it should apply to both sides. Multiple violations could very well literally destroy certain small employers. However, both of these penalty provisions are not as significant or as ultimately harmful to businesses as the other substantive provisions that we have been discussing. Those provisions will fundamentally change the way companies do business and the collective bargaining process.



Providing the NLRB with the power to seek injunctive relief in federal court where there is cause to believe that an employer has discharged or discriminated against, or interfered with employees' rights to organize or negotiate a first contract

Stock: Right now the NLRB does have the power to seek what is called a Gissel bargaining order. This is where unfair labor practices have been so pervasive that it is not possible to have a fair election. The effect of the bargaining order is that the union is recognized and the employer is required to bargain with the union for a first new contract. Since the Gissel bargaining order is already available to unions, presumably this proposal is being introduced to somehow lower the threshold on the evidence a union must present in order to obtain such an order. This provision, if enacted, is likely to be used as a sword, rather than a shield, by unions to exert pressure on employers to recognize and bargain with a union prior to an election and to agree to certain bargaining proposals after an election.



Beginning bargaining within 10 days of certification

Stock: This provision is bothersome mainly to the extent that there are issues in the election that have not been ironed out in the election process, e.g. issues concerning the scope of the collective bargaining unit or problematical ballots. As I mentioned earlier, before an election, the appropriateness of the collective bargaining unit is one of the issues that may come up. When there are 45 days before an election, that issue can be ironed out well before the election. If there is a short period for the election, that issue may have to be dealt with afterward. Also, certain ballots cast in the election may be challenged, casting doubt on the results of the election. It would be inappropriate and a waste of time where there are issues with the scope of the collective bargaining unit and whether the union has won the election for the parties to have to begin bargaining. Also, it would be difficult and unreasonable to require the parties to prepare a whole set of bargaining proposals and actually begin bargaining less than two weeks after certification.

Editor: Your analysis has been very helpful. Just to be clear - these provisions would apply only at such time as a union is attempting to organize a company's labor force initially?

Stock: That is correct. The aim of this bill is to make unionization of companies quicker and easier so that unions no longer have some of the purported hurdles that are preventing them from organizing workers.

Editor: A question outside the scope of the proposal is what happens if this measure is adopted and covers states that are right-to-work states? Does this now override all the state legislation allowing freedom of choice as to union membership?

Stock: No. Right-to-work states deal with a different issue. In all states, including right- to-work states, the National Labor Relations Act preempts all state laws with respect to union organizing. What the right-to-work issue deals with is that in states that are not right-to-work states, in some collective bargaining agreements unions have negotiated into contracts a provision that requires that all workers covered by the collective bargaining agreement become union members. If they don't become union members, the employers may be required to terminate the employees. In right-to-work states, unions cannot require that such provisions be part of a collective bargaining agreement. In right-to-work states, even though an individual may not be required to become a union member under a collective bargaining agreement, he or she may nevertheless be required to pay dues to the union, typically at a reduced rate, to pay for the union's representation and the administration of the collective bargaining agreement.

Please email the interviewee at astock@lowenstein.com with questions about this interview.