GOVERNMENTAL RELATIONS
Employee Free Choice Act Introduced
As I’m sure you are all aware, the Employee Free Choice Act was introduced by Senator Tom Harkin and Congressman George Miller inthe U.S. House of Representatives and the U.S. Senate on March 10, 2009. The House version (H.R. 1409) has 233 co-sponsors, three of which are Republicans. The Senate version (S. 560) has 40 co-sponsors, none of which are Republicans; however 18 Senate Democrats have refused to co-sponsor the legislation, including Louisiana Senator Mary Landrieu.
Though there are many horrific provisions included in the misnamed Employee Free Choice Act; card check, binding arbitration, and back pay will have the greatest impact on America’s businesses. With the introduction of the Employee Free Choice Act we will, undeniably, hear the proponents and opponents views and arguments. It is important that we have a good understanding of the provisions and consequences that accompany this unseemly piece of legislation.
Card Check
Currently, the most common method for determining whether or not employees want a union to represent them is a private ballot election overseen by the National Labor Relations Board (NLRB). The NLRB provides detailed procedures that ensure a fair election, free of fraud, where employees may cast their vote confidentially without peer pressure or coercion from unions or employers. Union bosses, however, find private ballot elections to be an impediment to unionization. They prefer the card check process, where employees are forced to cast their vote in front of union organizers and fellow employees who support unionization.
Under the National Labor Relations Act, employees generally determine whether they want a union through a private ballot election supervised and conducted by the NLRB. To ensure a fair election free of employer and union coercion, the NLRB follows strict procedures. Among other things, an NLRB representative is present and oversees the entire voting process and ensures that neither the employer nor the union can determine how an individual employee votes. While both the employer and the union are present for the election, they are simply observers of the process, and may not speak with the voters or see how a particular employee votes.
Current law prohibits employers from making threats of reprisal or force, or promising benefits that might interfere with an election. Prohibited acts include threats of physical force or loss of job or benefits, or promises of pay raises, promotions or other benefits. If employers engage in such conduct, and their behavior disrupts election conditions, the NLRB may order the employer to bargain with the union even in cases where the union lost the election.
The National Labor Relations Act (NLRA) provides for the removal of a union that has lost workers' support. The process is similar to that used to join a union today: Union opponents collect petition signatures from co-workers. When they have 30 percent of workers on board, they can petition for a decertification vote.
EFCA would change the process for joining a union. Under EFCA's card check rule, a union would be recognized once it has signatures from a majority of workers; there is no vote. EFCA does not, however, change the basic process for removing a union, and the peculiarities of the binding arbitration process mean that workers who are dissatisfied with their union would have fewer chances to start the decertification process. Once a collective bargaining agreement is in place, a decertification election cannot be held while that contract is in effect, for up to three years.
Binding Arbitration
Under the Employee Free Choice Act, if a union and management cannot agree to terms on the first contract after a union is recognized; either side could send the dispute into binding arbitration. This means that both workers and management must accept what is, at bottom, an arbitrator's educated guess at what a fair and prudent contract might be.
The most obvious consequence is that employees could be stuck working for less than they might get at another company. And because of the way that binding arbitration affects some obscure provisions of the National Labor Relations Act; workers would be stuck with the union that very well may have let them down, perhaps by not accepting a better offer from management when it had the chance or by putting on a poor presentation in front of the arbitration panel.
With binding arbitration in place, worker’s rights would likely disappear or be rendered moot. EFCA would not allow workers to terminate the arbitration process, so no matter how long arbitration dragged on, workers would remain stuck with it—even if it lasted longer than a year. Currently workers vote to ratify the contract their union has negotiated on their behalf. If they do not like the terms, they can vote the contract down and send the union back to the negotiating table. This does not happen with binding arbitration. Once an arbitrator is called in, his or her word is final, so a vote to reject the contract is out of the question.
Back Pay
Provisions of the Employee Free Choice Act would provide triple back pay to employees who are unlawfully discharged or discriminated against while involved in union activities during an organizing campaign or in the period leading up to a first contract. Civil fines of up to $20,000 per violation could be imposed if an employer is found to have willfully or repeatedly violated employees' rights during an organizing campaign or while bargaining for a first contract. Under the measure, NLRB could seek an injunction in federal court when there is reasonable cause to believe that the employer has discharged or discriminated against employees, made threats to discharge or discriminate, or interfered with employee rights to organize or negotiate a first contract.
Though it is extremely important we understand the impact this piece of legislation will have on our businesses, it is just as important that we have the ability discuss with others the anti-business and un-American consequences that can result with the passage of the Employee Free Choice Act.
ABC Launches Website to Educate Public on Card Check Legislation
Associated Builders and Contractors (ABC) launched a new website, TheTruthAboutEFCA.com, to help educate the public about the sweeping economic and workplace consequences of the Employee Free Choice Act (EFCA), or “card check” legislation. TheTruthAboutEFCA.com will track the latest news from the mainstream media and social networking sites, highlight academic studies and public opinion data, and contain video ads and interviews to expose EFCA's threat to the U.S. economy and an employee's right to a federally supervised private-ballot during union organizing activities.
“If the Employee Free Choice Act is signed into law, recent studies show that it will have a devastating impact on the U.S. economy and most likely result in the loss of jobs in the commercial and industrial construction industry,” said Jerry Gorski, 2009 ABC National Chairman and President of Gorski Engineering, Inc., Collegeville, Pa. “This new website is an important tool in keeping the public informed and getting them involved in the political process so they can voice their opposition to this legislation.”
TheTruthAboutEFCA.com is part of a multi-faceted new media campaign slated to help shed light on the “card check” issue and expose some of the misinformation being spread by EFCA supporters. Besides tracking the latest news on EFCA, the website contains a blog with contributions from ABC staff and special guests. The website is sponsored by the Free Enterprise Alliance, the issue advocacy arm of Associated Builders and Contractors.
“Secret Ballot Protection Act” (S. 478/H.R. 1176)
ABC expressed support for the “Secret Ballot Protection Act” (S. 478/H.R. 1176) introduced Feb. 25 by Sen. Jim DeMint (R-SC), Rep. Howard McKeon (R-CA), and Rep. John Kline (R-MN) that would amend the National Labor Relations Act (NLRA) to protect the right of employees to vote in a secret ballot election when deciding whether to join a union. The bill would prohibit unions from subjecting workers to a “card check” campaign.
Under the current system, secret-ballot elections are conducted by the National Labor Relations Board (NLRB) and ensure a fair election free of employer and union coercion by requiring an NLRB agent to be present and to oversee the entire voting process. Both employer and union representatives are able to monitor the election process; however, they are strictly observers and may not speak with the voters or see how a particular employee voted. Under the “card check” process, employees would have to indicate their choice of whether to join a union by signing a card in front of their co-workers, employers and union organizers.
“The current system works, yet workers’ freedoms are being threatened by the so-called “Employee Free Choice Act,” ABC stated in a letter to members of Congress. “This ill conceived legislation would amend the NLRA by permitting labor unions to evade secret ballot elections. To that end, ABC strongly supports the “Secret Ballot Protection Act,” which would ensure that employees have the right to make their decision regarding unionization in private, free from coercion by employers, unions or other employees by requiring a secret ballot election for union recognition.”
2009 Louisiana Legislative Session
The 2009 Louisiana Legislative session convenes April 27, 2009 and adjourns no later than June 25, 2009. The session is considered a fiscal session and the majority of the bills will deal with appropriations, capital budget, and taxes. Legislators are allowed to file local and special bills through the 10th day of session. Bills not within the subject matter (fiscal, local or special) are allowed, but must be prefiled and are limited to 5 per legislator. The prefiling deadline for the 2009 Regular Session is April 17, 2009.