Governmental Affairs - News & Articles
TWO LABOR LAWS TO WATCH:
Employee Free Choice Act (EFCA) and the Re-empowerment of Skilled and
Professional Employees and Construction Tradesworkers (RESPECT)
labor legislation continues to evolve and will most likely return to
center stage as the unions continue to press for the enactment of the
EFCA and the RESPECT Act once the health insurance reform issues are
addressed. As discussed below, both proposed laws will affect
both unionized and non-unionized employers and should be
appears that the EFCA does not have the congressional support it
initially was advertised as having. The EFCA was reintroduced
in the House and Senate on March 10, 2009 with the same provisions as
those introduced in 110th Congress and the House of Representatives
indicated that it would pass the law as proposed; however,
modifications to elements of the bill may need to occur to get the
legislation passed and, further, the Senate may not get the 60 votes
necessary for a cloture vote to beat a possible
The EFCA, as proposed and
supported by now President Obama and Vice President
Biden, initially provided:
Card check in place of secret ballot elections; no notification to
employers and no withdrawal of authorized cards—once signed,
an employee cannot revoke his or her card.
Mandatory mediation with the Federal Mediation and Conciliation Service
After 120 days, if no initial collective bargaining agreement (CBA) has
been reached, then the FMCS will appoint an arbitrator.
An arbitrator will impose on the employer what he or she believes to be
appropriate wages, hours and other terms and conditions of employment.
No ratification of the initial CBA by employees.
The initial CBA will be for a period of 2 years.
Mandatory injunctive relief against employers for committing unfair
labor practices under §10(l) of the National Labor Relations
$20,000 fine for each employer violation of the NLRA.
Reinstatement of employees who are unlawfully terminated under the NLRA
with triple back pay.
Recently, Senator Tom
Harkin (D-IA), with the backing of the unions, has started to prepare
for a political showdown on the EFCA. Frustrated with the
stalemate, Senator Harkin stated that he intends to bring the bill to a
vote on the Senate floor, which should put pressure on, and possibly
embarrass and isolate, the three former supporters of the legislation
who are now waffling on the bill: Senators Arlen Specter who,
after switching political affiliations is now a Democrat (D-PA), Dianne
Feinstein (D-CA), and Blanche Lincoln (D-AR). Now that Al
Franken has been seated as the democratic senator from Minnesota,
Senator Harkin and the unions hope that this pressure will give them
the 60 Senate votes they need to override a filibuster.
Although Senator Harkin has not specified a date
for the vote, he is taking action to garner support for the EFCA
because there has been insufficient movement by these Democrats on
acceptable amendments. Recently, he met with several other
Senate Democratic leaders, including Senate Majority Leader Harry Reid
(D-NV), to develop a strategy for moving the bill forward. If
necessary, Senator Harkin will evaluate alternatives, including ways to
“tinker” with the provisions to pacify the moderate Democrats and
improve the chances for passage. The essential elements of
the EFCA, including the card check and arbitration provisions, seem to
be intact but are being contested.
likely that any Democratic senators voting against the cloture vote to
end a filibuster, or who vote against the current EFCA bill itself as
currently written, will be targeted and retaliated against by the
unions, which may try to use their money and membership to get these
individual senators unseated. Remember, at one time all 60
democratic senators told the unions that they supported the
EFCA. Now the unions are saying: We paid you for your
vote—now vote for what we paid you for. Union membership has
been declining and the unions, especially the IBT and the UFCW, have
realized that they can’t succeed when there is a secret ballot
election. They need this legislation to
survive. Over the last two years Hoffa has increased union
spending on representational activities by 31%. In 2006 the
IBT spent $47.2 million. This increased to $56.7 million in
2007 and, according to the LM-2 report filed this year, in 2008 the IBT
spent $61.8 million. Likewise, in 2008, under the
direction of Joe Hanson, the UFCW spent $68.5 million on representation
activities—a 45% increase from the $47.8 million it spent in
Although there is a continued
resistance to the EFCA, some believe that it has a less than even
chance to pass in its present form. If organized labor can not
pass all of the EFCA, its leaders may look to President Obama’s new,
democratically controlled National Labor Relations Board (NLRB) for
greater protection. While nothing would be as effective as the
EFCA, the NLRB could:
- Shorten the election time to less than the current 42-day period.
more bargaining orders for employers to recognize a union where the
employer committed serious unfair labor practices.
- Engage in rule making for more union-favorable rights and remedies.
- Force arbitration in egregious unfair labor practice cases.
- Speed up decision-making and issue more injunctions against employers.
should employers do and when? Besides auditing the
organization’s current environment, culture, policies and problems, it
is essential that an employer conduct both strategic and tactical
planning to achieve short-term and long-term goals. Employers
should watch, listen and oppose the EFCA and, further, during the lull
in the legislative process, take affirmative steps regarding the
employment relationship to demonstrate that unions are
unnecessary. This could include:
Taking a positive approach and conducting managerial and supervisory
Establishing your organization as a world-class employer with a culture
of not signing documents without knowing all of the
Understanding the negatives of having a union and being aware of signs
of union organizing.
Building relationships with employees; remember that an employer is
only as good as its relationship with its employees. Use job
evaluations and other tools for building
Establishing a culture of trust and open dialogue.
Committing to your organization and employees; developing an “Open
Door” policy and an effective Peer Review Process.
Using simple employee attitude surveys and self-audits and
understanding irrelevant assumptions and generational differences.
Reviewing win-win values to make unions unnecessary and eliminating
barriers to effectiveness.
Organized labor will
watch closely to see who opposes this legislation. The
Democrats in Congress who do not support the EFCA will likely face
challengers in the next general election who are promoted and backed by
organized labor and their millions of dollars and millions of
members. Unions can no longer wait and they just may have the
support they need. President Obama recently said that he
supports unions and he will support the EFCA.
The RESPECT Act
Re-empowerment of Skilled and Professional Employees and Construction
Tradesworkers (RESPECT) Act, which would amend the National
Labor Relations Act (NLRA), has less impact than the EFCA but also less
opposition. Essentially, the RESPECT Act would make more
individuals “employees” under the law and there would be fewer
individual supervisors. Why is this
important? Supervisors should support their company’s culture
and views that unions are unnecessary. Further, supervisors
can not be organized under the NLRA. Currently, supervisors
are generally leaders and can generally effectively communicate the
employer’s message. Employers need supervisors to not only run
their companies but, just as important, to drive the proactive,
non-adversarial culture in these difficult economic
carefully crafted the NLRA to balance the competing interests of
management and labor when considering whether an employee is a
supervisor. According to the definition in Section 2
(11) of the NLRA, a supervisor is:
[a]ny individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action...[so long as this authority]
requires the use of independent judgment.
RESPECT Act would change the definition of "supervisor" by altering
Section 2 (11) in the following three ways:
- Striking the word "assign";
- Striking the phrase "or responsibly to direct them"; and
Inserting the phrase "and for a
majority of the individual's worktime" after the
phrase "in the
interest of the employer."
changes would largely eliminate the position of "supervisor" as a legal
classification since very few managers spend the majority of their work
time hiring and firing employees. Through
seemingly minor statutory alterations, the RESPECT Act, by redefining
the criteria used to determine whether an employee is a supervisor,
would destroy the balance that currently exists between management and
organized labor. As a result, productivity and efficiency could
decrease—an undesirable development under any economic conditions, let
alone during the current recession, and it would ultimately be
easier for unions to organize
I predict that shortly after
Labor Day, September 7, 2009, when Congress reconvenes, every effort
will be made to pass the EFCA in its original form or in a modified
version. I will keep you posted on the progress of both
bills. If you hear about any developments or have any
questions about either of the proposed laws, let me know—I am
interested in your thoughts. You can e-mail me at
firstname.lastname@example.org or call me at 414-423-1330. In the meantime,
consider a program to demonstrate that unions are unnecessary.