Union Organizing: Will It Get a Boost from Congress? Pressure From Organized Labor Backfires in Olympia

By Clemens H. Barnes
March 26, 2009

On Tuesday, March 10, the Employee Free Choice Act (“EFCA”) which was passed in the House in 2007 but fell short of the votes required to break a filibuster in the Senate, was reintroduced in Congress. A major promise when President Obama spoke to union groups during the presidential campaign was that he would sign it into law. There is little question that EFCA would assist union organizers because of its three key provisions:

Eliminating the current requirement for a secret ballot election, in which employees vote for or against union representation, instead accepting signed union cards as proof of the union’s status as the employees’ bargaining representative;
Increasing penalties against employers accused of pressuring or penalizing workers who support a union-organizing campaign;
Providing that if an employer and union do not agree on the terms of their first collective bargaining agreement within 90 days after bargaining begins, either party may refer the dispute to federal mediation to facilitate negotiations, and if mediation does not result in a settlement within 30 days, the dispute will be referred to a government-appointed arbitrator, who will set the terms of employment for two years.

Meanwhile in Olympia, a labor-backed bill, known as the “Worker Privacy Act,” was killed on Friday, March 13—by the Governor, along with the Senate Majority Leader and the House Speaker—after inappropriate lobbying by organized labor was uncovered by the Seattle Times. The Act would have let employees refuse to attend mandatory meetings in which employers tell their side of the unionizing issue. So-called “captive audience speeches”— mandatory meetings employees are paid for attending—can be an important avenue for communicating an employer’s message about unions, but unions may speak with employees on working time under certain circumstances. Employers are not allowed to visit employees at their homes to share their message. Opponents argue that this law, if it had passed, would violate “free speech” rights of employers under the law, and upset a balance that allows both sides to reach workers with their message.

Card Check Versus Secret Ballot Election

Union organizing drives start with collecting signed “authorization cards,” which state that the employee signing the card wants that union to be his or her bargaining representative. Currently, an employer can demand a secret ballot election even if a majority of employees has signed authorization cards. Among reasons cited for the current requirement of a secret ballot election, in order to obtain informed, uncoerced votes, is the concern that authorization cards are gathered when only the union organizer’s side has been heard, and card-signing may be influenced by peer pressure from fellow workers supporting the union. Under current law, employers may accept signed authorization cards as sufficient proof that a majority of employees want union representation, but may insist on a secret ballot election, conducted after a period of a few weeks of campaigning and typically after the employer has had time to get its message out. Most employers insist on an election. Union organizers contend that during a campaign, employers have better access to the employees for delivering their message, and can pressure employees or engage in reprisals which kill support for a union.

EFCA would not per se eliminate the election process, which can be initiated by cards collected from 30 percent of the bargaining unit employees; however, a union which has collected cards from over 50 percent of the employees (not just the 30 percent required to get a secret ballot election) could force unionization without one. As a practical matter, expect secret-ballot union elections to be eliminated. Although a union can obtain an election under current law if it has signatures from 30 percent, rarely does it file a petition without more than the 50 percent needed to win, because, as time passes, that percentage generally erodes with employer campaigning.

EFCA provides that the National Labor Relations Board will adopt regulations addressing how to establish the validity of signed authorization cards.

First Contract Mediation and Arbitration

In the public sector, “interest arbitration”—use of an arbitrator who does not just facilitate agreement on the terms but sets them himself—is not uncommon, under the laws of the various states. (Public employees’ bargaining is not governed by the National Labor Relations Act, but rather by state law, if at all.) However, it is all but unheard of in private sector labor relations. In private sector bargaining, the Federal Mediation and Conciliation Service (FMCS) provides mediators to assist union and management in reaching agreement where bargaining has stalled. However, the FMCS is just a facilitator which does not have authority to dictate the terms of a contract if the parties can’t reach agreement themselves. EFCA would radically change collective bargaining: unless the parties agree on a contract in the first 120 days, the FMCS will refer the dispute to an arbitration panel to dictate the employment terms.

Proponents of the legislation argue that current remedies against stonewalling employers are so weak that they can, in effect, win by “surface bargaining” instead of negotiating in good faith. The pressure is on a union to obtain a contract within the first year after it is certified as the employees’ bargaining representative, because at the end of that “certification year,” the union loses its insulation against attempts to decertify it. Opponents of the legislation point out that there are already remedies for bargaining in bad faith and that, if workers believe they are not getting a fair offer, in the private sector they can strike.

As a practical matter, the provision for “interest arbitration” assures a union of getting a “first contract” on terms dictated, not by bargaining leverage, but by a government-appointed arbitrator. This also would help a union organize workers in the first place, because with EFCA the union could now make a guarantee it could not honestly make before—that it will get more than just negotiations, it will get a contract—without striking—the terms of which will not be dictated by their employer’s bargaining leverage.

Increased Penalties for Unfair Labor Practices

EFCA would require the NLRB to seek an injunction when there is reasonable cause to believe that employers have pressured or penalized employees, or engaged in other conduct that significantly interferes with employee rights during an organizing drive or first contract negotiation. It also calls for increases in monetary penalties for employers who pressure or penalize employees during an organizing campaign or first contract negotiations, including triple lost pay, and civil fines of up to $20,000 per violation against an employer found to have willfully or repeatedly violated employee rights during an organizing campaign or first contract negotiation. Currently there are no civil fines for violations.

Prospects for Passage?

EFCA legislation died in Congress last time because, in the Senate, Democrats failed (by nine votes) to obtain the 60 votes needed to invoke cloture to end the opponents’ filibuster. (A motion for “cloture” in parliamentary procedure is one aimed at bringing debate to an end.) In the U.S. Senate, to overcome a minority’s filibuster, a super-majority of 60 out of the 100 senators suffices. Democrats hold 56 seats now, 57 if Al Franken is seated in Minnesota, and there are two independents who typically vote with the Democrats. Strong pressure can be expected from the business community to kill or revise EFCA. And on March 25, there were reports that Senator Arlen Specter, a moderate Republican, will vote against it, although he would consider an anti-business measure of this kind when the economy recovers.

Some Thoughts for Proactive Employers

If EFCA becomes law, the need to understand the often tricky rules about what is and what is not “unfair” conduct by employers in a union-organizing campaign or in contract negotiations will be even greater than it already is, and effective campaigning by employers, within the rules, will be required much earlier in the process—at the card-signing phase of organizing. Traditional pre-election campaigning will come too late. Awareness of do’s and don’ts when discovering a union organizing campaign is underway, and dealing with it early, will be a must.

For more information, contact attorney Clemens H. Barns at