Employee Free Choice Act

Update . . .

bcaufield@foxrothschild.com (Brian Caufield) — Mon, 13 Jul 2009 15:44:15 -0500

It appears that Congress’ attention has turned from vetting and passing EFCA to more pressing matters such as healthcare and a possible second stimulus bill—despite President Obama’s contention that a second one is not needed at present. Now, this does not mean that congress will not give EFCA its due, but it seems that, at present, it has taken a very back seat. In fact, it might be off the bus.

EFCA’s current place in Congress means that it is not likely anything will get done before the year is over and then who knows what will happen next year with midterm elections just 11 months after the New Year. So, while we would love to track the pundits comments about EFCA, it is simply not doing any of our readers any good for us to report on what others are saying when nothing it likely to get done in Congress. To this end, we have decided to take our Blog offline.

Taking the Blog offline does not mean that we will not continue to track EFCA, it just means that we will not be posting on a regular basis until there is. The Firm will continue to prepare its Alerts on important changes in employment and labor law and will forward such Alerts to current subscribers of the Blog.

I want to personally thank my Office Managing Partner, Theodore Eisenberg, for his support and encouragement. Jennifer DaCosta and Lee Sevier must also be given significant credit for getting this Blog off the ground, for if it were not for their leg work, what you see would not be. Many thanks also go out to Darren Rumack for his endless posts when personal matters made it difficult for me to post. Lastly, Marvin Weinberg and the rest of the Blog team has provided great support throughout the time the Blog has been up. I truly could not have accomplished as much with the Blog without them.

So, until there is more to report, we say goodbye for now.

Obama recognizes the need for compromise

bcaufield@foxrothschild.com (Brian Caufield) — Mon, 18 May 2009 13:49:02 -0500

President Obama said in a town hall meeting in Rio Rancho, NM that he is supportive of EFCA, but acknowledges that the Senate does not have the votes to pass it. Obama noted that Congress will need to find a way to gain the support for passage, while at the same time perserving EFCA's core (i.e.; elimination of the secret ballot requirement under the National Labor Relations Act). This is going to be difficult to accomplish once hearings on the proposed bills get under way in Congress.

I say this because the hearings will undoubtedly include testimony from employees about the immense pressure now placed on them by unions and union supporters to sign authorization cards and that this pressure is only likely to increase if the unions and union supporters are guaranteed to be certified once a majority of the employees sign the authorization cards. See, now, only 30% of employees need to sign to begin the process that culminates in a secret ballot election; and a union is only certified if a majority of employees vote for union represenation. Meanwhile, the process I of takes about a month to six weeks to complete, during which time employees are free educate themselves on the pros and cons of being represented by a union.

Yes, unions and union supporters will say that this process is employer dominated and there is no way for employees to truly educate themselves when employers are holding meetings during the workday drilling into employees' heads that unionization is bad. This arguement gives no credit to employees and their want to be educated. The Internet and public libraries provide great access to materials for employees to become edcucated about whether or not they wish to have a third party speak for them. Union and union supporters may counter that employees can educate themselves before signing. While this may be true, the pressure they will face to sign and sing on the spot will be immense.

Thus, perserving the core of EFCA may not be so easy if union coercion and pressure is not adequately addressed.

Let the Games Begin . . .

bcaufield@foxrothschild.com (Brian Caufield) — Wed, 11 Mar 2009 10:41:48 -0500

On March 10, the House of Representative and the Senate both introduced the Employee Free Choice Act ("EFCA"). The much anticipated introduction was once thought to come much later in the Obama Administration, but now that the stimulus and appropriation measures are off Congress' plates it can focus on other legislation. There seems to be very little doubt that the EFCA will pass in the House, but get much stronger opposition in the Senate.

As this Blog has said, the EFCA is legislation that, if passed, will bring about the most drastic overhaul of private sector labor relations since 1935. The EFCA, commonly referred to as the “card-check” law, will strip employees’ rights to vote, in a secret-ballot election conducted by the National Labor Relations Board (“NLRB”), to determine whether they wish to be represented by a union in dealing with their employer.

As the National Labor Relations Act (“NLRA”) stands now, unions can file a petition at the NLRB with only thirty percent of a given workforce “pledging” support for the union and that will trigger the secret-ballot election. The EFCA will up the requirement for filing a petition to a majority of a given workforce, but eliminate the election. Instead, by mere presentation of a majority of the given workforce “pledging” support for the union, the NLRB will certify that union as the representative of those workers in dealing with the employer.

As if eliminating a democratic process was not enough, the EFCA includes a mandatory arbitration provision that would have an arbitration panel impose a contract upon the parties that is binding for two years. Currently the NLRA requires that the parties meet and confer in good faith, but does not require that either agree to any terms or conditions. Under the EFCA, if within 100 days from the certification the employer and union do not reach a contract covering the wages, hours and other working conditions for the given workforce, the Federal Mediation and Conciliation Service (“FMCS”) must intervene and mediate between the parties to bring them to an agreement. If the parties do not agree to a contract within thirty days of FMCS’ involvement, the arbitration panel will then decide the terms of the contract for the parties and that decision will be binding upon the parties for two year.

We will soon begin to see the lines drawn in the sand and hear from experts on both sides as to why they favor oppose the EFCA. As important developments arise, we will post. We encourage readers to comment and become engaged in the debate. We look forward to the months ahead.

This Just In. . .

bcaufield@foxrothschild.com (Brian Caufield) — Thu, 26 Feb 2009 12:05:02 -0500

The House Education and Labor Committee Republicans provided a copy of the text to H.R. 1176: The Secret Ballot Protection Act. Republicans on the Committee of Labor and Education.

Briefly, the Secret Ballot Protection Act seeks to amend the National Labor Relations Act in two substantative areas. First, it will make it unlawful for an employer to recognize or bargain with a union that has not been selected by a majority of its employees through a secret ballot election conducted by the National Labor Relations Board. Second, it will make it unlawful for a union to cause or attempt to cause an employer to recognize or bargain with a union that has not been selected in the same manner.

The Republican version is simplified and, the way I see it, will not raise as many procedural questions as the current Employee Free Choice Act. So, now that there are competing versions of bills attempting to bring about private sector labor law reform the apt saying now is: Game on!!

Republicans Strike Back

bcaufield@foxrothschild.com (Brian Caufield) — Thu, 26 Feb 2009 10:16:28 -0500

On February 25, Republicans submitted the Secret Ballot Protection Act (H.R. 1176) to the House floor. The Secret Ballot Protection Act is a direct response to the Employee Free Choice Act. The Republicans' counter would ensure that secret ballot elections are conducted by the National Labor Relations Board to determine whether employees wish to be represented by a union. As the Republicans' stated, thier proposal is the only method that ensures a choice free of coercion, intimidation, irregluarity or illegality.

Many have asked me when Congress will take action on the Employee Free Choice Act and what is the likely outcome. Prior to the Republicans' pre-emptive strike with H.R. 1176, I thought that the Obama Administration might place the Employee Free Choice Act on the backburner--especially in light of the stimulus packages taking priority. Now that H.R. 1176 is in the mix, Congress may have to take on the private sector labor reform earlier than anticipated.

Only time will tell . . .

Not Exactly True . . .

bcaufield@foxrothschild.com (Brian Caufield) — Wed, 04 Feb 2009 11:30:45 -0500

Unions are claiming that Employer opposition to the Employee Free Choice Act ("EFCA") is based on "misinformation", because the National Labor Relations Board ("NLRB ") will still be allowed to conduct its secret ballot elections. The Unions' make it seem as though Employers are running around claiming that the secret ballot elections will be stripped completely--no, not as a practical matter. The NLRB will still conduct secret ballot elections if the Unions want that. However, the reality is that once Unions are given the option of having the NLRB certify a union immediately upon presentation of at least a majority of union authorization cards signed by a specific unit of employees versus waiting some 40 days, whereby employees become educated during this period, and then having a secret ballot election, Unions are going to select the certification route instead of the election route. It really is a no-brainer that Unions will avoid, at all cost, the election route. I mean, why do you think the Unions' have placed so much money, time and effort in seeing that the EFCA passes? Is it because the EFCA calls for mandatory injunctions? I think not. How about the mandatory contract arbitration? Yeah, could be, but without a certification, there can be no representative or contract for that matter. So, there is no "misinformation" being spread--just reality, which is that once a "card-check" certification is in place, the secret-ballot election may die.

Dems Put EFCA on the Backburner

DRumack@foxrothschild.com (Darren Rumack) — Fri, 23 Jan 2009 10:27:28 -0500

With the Democrat-dominated Congress already getting to work on a number of employee-friendly pieces of legislation such as the Lilly Ledbetter Act, Congressional leaders have indicated that passage of the EFCA is not their first priority.

According to Rep. George Miller, chairman of the U.S. House of Representatives Labor Committee, the EFCA will be dealt with—in due course.

However, according to Mr. Miller, “[T]here are things that may be more urgent because of circumstances beyond our control. That doesn't diminish the urgency I feel or the supporters of the Employee Free Choice Act feel ... I am quite comfortable that this is going to receive timely treatment…”

It remains to be seen how patient organized labor will be with the new Congress, considering how much support they provided in the last election cycle, all conditioned on the passage of the EFCA.

EFCA Alert

DRumack@foxrothschild.com (Darren Rumack) — Tue, 18 Nov 2008 11:16:08 -0500

Fox Rothschild Labor and Employment Department has issued an Alert on the EFCA. If our readers are unfamiliar with the EFCA, this article is a good starting point and summary of the proposed law.

Why you don't have to hate unions to oppose the EFCA

JDaCosta@foxrothschild.com (Jennifer L. DaCosta ) — Thu, 13 Nov 2008 20:46:16 -0500

If you are reading this blog posting, you are probably well-aware of the fact that it is on the web page of a law firm that represents management in employment matters. Here is a piece of information you do not have: This particular writer used to be a member of a union. That’s right. I was a member of a labor union and I was glad for it. After a few years anyway.

My initial reaction to starting my job and being told that all of the teachers in the NYC public school system are members of the union was, “Really? I don’t get to choose?” As I soon learned, I did not get to choose. The teachers who had come and gone before me had made the choice for me. Over the years, I came to appreciate the union. That did not, however, negate the fact that I had not chosen to become a member.

Now, with the passage of the EFCA looming in the horizon, I’ve had to think about what it means to choose union membership. If the EFCA is passed, workplaces may become unionized just by workers signing cards. That’s it. No private ballot, just your signature on a card.

Many people have questioned the freedom in that. Gone is the safety of knowing that no one will ever know where you put that “X” on the ballot. That safety seems to be important, though. It even seems to be important to Congressmen John D. Dingell (D-MI) and Henry Waxman (D-CA) who recently supported a private election in choosing the Chairman of the House Committee on Energy and Commerce. This even though they support the passage of the EFCA. (See a letter from the Alliance for Worker Freedom to Representatives Dingell and Waxman here. See how your representative voted here.) Clearly there must be some benefit to having a secret ballot election. But the EFCA supporters have lost sight of that. This new card-check process is going to come at a cost. I wonder whether they can appreciate what that cost might be. I know Congressmen Dingell and Waxman must have an idea.

Employee Free Choice Act -- Things To Avoid During Union Organizing Campaign

jhorowitz@foxrothschild.com (John Horowitz) — Tue, 04 Nov 2008 15:20:41 -0500

When faced with a union organizing drive, employers are usually quick to react, and begin an informal campaign discouraging employee membership in the union. However, employers must be mindful of their obligations, and their employees' rights, under the National Labor Relations Act. When faced with a union organizing campaign, remember to avoid these "TIPS":

T - Threats - Do not threaten employees that there will be a strike or they will lose their jobs because of the union. These are possibilities and must be explained as such.

I - Interrogation - Do not ask how an employee feels or intends to vote on the union question. Do not put him or her in a position where he/she must tell you his/her feelings about a union.

P - Promises - Do not promise any benefit to an employee. It will be construed as an attempt to buy his or her vote.

S - Surveillance - Do not spy on union meetings or conversation.

EFCA - Antithesis to Democracy?

LSevier@foxrothschild.com (Lee A. Sevier) — Wed, 29 Oct 2008 10:37:43 -0500

The right of workers to vote for or against union organization without fear and intimidation will be a thing of the past if Barack Obama is elected President of the United States of America. Obama is a known supporter of The Employee Free Choice Act, which proposes, among other things, to eliminate workers’ rights to a secret ballot if “one more than 50%” of workers sign off on a card check. Under this proposed Act, once a majority card check is obtained, the union is certified and there is no right to a secret ballot. Thus, there is no review process in place to determine the circumstances under which the card checks were signed. This gives unions free reign to intimidate workers without fear of consequence.

There is a reason America provides for a private voting system in our elections- democracy. In order to ensure a fair election, systems have to be put in place to avoid voter intimidation. If the Act is so enacted, unions will have free reign to obtain card checks in any manner they see fit, because they will not have anyone to answer to once they obtain "one more than 50%". The fact that a government, which is supposed to be democratic, would sponsor such a restraint on free will, begs the question of what will happen to the privacy rights of those voting in general elections? If one party can obtain a majority of signatures, will we automatically establish that person as President and take away the right to a vote free from intimidation? Thus, in November, it will be decided if workers will be able to exercise their vote free from intimidation and, as such, whether employers will have a fighting chance against union organization.

A Response to Our Readers

DRumack@foxrothschild.com (Darren Rumack) — Mon, 25 Aug 2008 18:01:11 -0500

In a comment to our last post, one reader wrote:

My husband works for UPS Freight, formerly Overnite Transportation, in Richmond, VA. He has seen first hand the results of a union vote based on the card check. The union did not talk to any road drivers who were formerly Overnite and concentrated on dock workers for their 50% card checkers. Once the vote date was set, only those who had signed under card check could even attend the Union meeting. As a result, 32 people voted in the union - clearly not a majority of the 141 affected by the vote. Many would not vote because a secret ballot was not available.

Do you know of anyone in Richmond Virginia who is following this debacle of modern democracy?

Thanks!

The EFCA Blog's Response:

Although we have not personally followed the story you reported, it is nonetheless emblematic of the downside of the card-check procedure, and the potential corrosive effects the EFCA (and card-checks) can have on fair unionization procedures, and ensuring a democratic workplace.

That said, you should not feel powerless in the wake of card-check procedures--any legitimate concerns should be reported to the National Labor Relations Board to ensure a fair union representation process. Another option is the National Right to Work Legal Defense Foundation (located in Springfield, VA), which can also assist with issues relating to "forced" unionism.

EFCA: The Big Misnomer

bcaufield@foxrothschild.com (Brian Caufield) — Fri, 15 Aug 2008 12:06:29 -0500

First off, many thanks to Darren Rumack from the Firm’s New York City office for keeping this blog afloat for the several months while I attended to a number of client matters before the NLRB. I appreciate his enthusiasm and effort and he will continue to be an integral part of this blog as we continue to move forward to expose the true Employee Free Choice Act—which is completely a misnomer, since it strips away employee free choice.

I have to say that I am amazed at how little the business community is aware of the potential for passage of the EFCA and how such will affect their business and the economy. Assuming a Democratic presidency and Congress, this proposed legislation is almost certain to pass. Hopefully members of the Democratic party, of which I am one, will take a serious look at the language of the proposed legislation and realize its potential before just voting, lock, step and barrel, with the party for passage. One such person, with at least some clout, is trying to have his party see the forest for the trees. As reported in the Wall Street Journal, former Democratic Presidential Candidate George McGovern has come out in opposition to the EFCA. McGovern said that the Democratic party "cannot be a party that strips working Americans of the right to a secret-ballot election." I agree.

The EFCA’s biggest misnomer is that it will strip away workers’ rights to choose, in a secret-ballot election, whether or not to be represented by a union. Now, of course, unions will argue that this choice is coerced by through the use of pro-employer campaigns that take place at the workplace following the filing of a representation petition at the NLRB. Again, this argument has been taken on by the NLRB which has on a number of occasions said that employees are wise enough to determine fact from fiction, truth from propaganda. However, the union’s disagree with this and want Congress and the President to pass legislation that will allow an automatic certification of the union upon presentation of a majority of authorization cards signed by employees. So, where is the choice? There is none.

It is my hope that over the next several months, right through the Presidential election and beyond, that I, along with Darren and other members of the Firm, will be able to educate readers as to the different aspects of the proposes legislation. Please bear with us, however, demands of the workplace may prevent us from posting weekly, but that is our attempt, if not more. In the meantime, feel free to post your replies (this will force me to respond) or e-mail us (which again will force us to respond)—I don’t like when my clients go unanswered.

Update--Case Dismissed

DRumack@foxrothschild.com (Darren Rumack) — Thu, 31 Jul 2008 13:18:43 -0500

As an update to our readers--the complaints filed that we mentioned in our previous post have been dismissed without prejudice by the State of Minnesota Office of Administrative Hearings.

The EFCA Fight Heats Up--In a Minnesota Courtroom

DRumack@foxrothschild.com (Darren Rumack) — Tue, 29 Jul 2008 14:10:37 -0500

Article Prepared by Darren Rumack and Brian Caufield

The Minnesota Democratic-Farmer-Labor Party has filed complaints with the Minnesota Office of Administrative Hearings against two groups who oppose the EFCA, alleging that they made false advertising statements regarding Minnesota Senatorial candidate Al Franken, who supports the EFCA.

The complaint challenges print ads stating that Franken supports the elimination of secret ballot votes for workers, and wants to end worker privacy. Of course, while Franken might not have come out and said that, the EFCA would do just that, by authorizing card check recognition, and doing away with secret ballot elections.

As election season gets into full gear with the party conventions rapidly approaching, expect to hear more about the EFCA in the near future.

The EFCA is a Loser at the Polls

DRumack@foxrothschild.com (Darren Rumack) — Tue, 03 Jun 2008 11:14:03 -0500

Article prepared by Darren Rumack and Brian Caufield.

For all the talk amongst labor unions about the importance of passing the EFCA and supporting pro-union candidates, unions have neglected to share one bit of information--the EFCA appears to be a hugely unpopular piece of legislation in some states.

According to polling data presented by the Coalition for a Democratic Workplace, nearly two-thirds of voters in Colorado (68%), Maine (72%) and Minnesota (65%) oppose the passage of EFCA, and legislation that would eliminate private ballots in favor of card checks.

In what is sure to be a hotly contested election, the EFCA may become political dynamite for politicians who support the bill’s passage, particularly as awareness of what the EFCA actually entails grows amongst the electorate.

Once again, the EFCA will be an issue to watch for this fall, and could become a bigger issue than anticipated in many swing states.

Hawaii Governor Says No to Card Checks

DRumack@foxrothschild.com (Darren Rumack) — Thu, 24 Apr 2008 13:29:00 -0500

Article prepared by Darren Rumack and Brian Caufield.

As promised, Hawaii Governor Linda Lingle vetoed a bill that would have allowed the Hawaii Labor Relations Board to recognize a union based solely on card checks.

Lingle claimed that card check authorization would be a “poor substitute for the secret ballot and is ripe for abuse.”

Of course, this card check authorization scheme mimics that of the proposed Employee Free Choice Act, which if passed, would do away with secret ballot elections.

NLRB Rejects the EFCA in Favor of Maintaining "Abu-Ghraib-like Procedures"

DRumack@foxrothschild.com (Darren Rumack) — Tue, 08 Apr 2008 11:06:38 -0500

Article Prepared by Brian Caufield and Darren Rumack

The debate over the Employee Free Choice Act (“EFCA”) has heated up once again, as the Senate Appropriations Committee held a hearing addressing complaints over the NLRB, and the potential passage of EFCA.

The debate broke down into two camps: on one side, those who oppose the drastic overhaul that the EFCA would bring to private sector labor relations. This group includes past and present NLRB board members, who favor more incremental reforms at this stage.

Current NLRB chairman, Peter Schaumber came out against this complete overhaul of the system, stating that both the Board, and the NLRA have “proven to be remarkably flexible and adaptive over many years.”

On the other hand, a vocal contingent of EFCA supporters also attended the hearing, arguing that employers use scare tactics to pressure employees into rejecting unionization.

Perhaps the most memorable quote of the hearing came from Alan Hart, the managing editor of UE News, which is the newsletter for the United Electrical, Radio and Machine Workers of America. Hart compared the unionization process to the notorious Abu Ghraib prison, stating that “employees are taken into rooms for interrogations and intimidation, this is almost Abu Ghraib-like procedures we’re seeing these days.”

Union histrionics aside, it is clear that after a brief lull over the winter months, this contentious piece of legislation is going to be in the news once again.

The Quiet Before the Storm

bcaufield@foxrothschild.com (Brian Caufield) — Tue, 19 Feb 2008 15:15:42 -0500

We have been a bit quiet with this blog lately and mainly it is because it is the quiet before the storm. What do we mean by that? Well, the Employee Free Choice Act (EFCA) s stalled in Congress and while unions would love to focus on this piece of legislation right now, there is something even more pressing between now and November--ensuring that the Democrats secure the White House and both Houses of Congress. Why? This is the one sure way to see the EFCA passed.

It should come as no surprise to anyone that unions are an essential part of the democratic party's grassroots campaigning. Unions provde manpower to staff the phonebanks, walk the neighborhoods and get voters to the polls. It can be argued that they are the lifeblood of the democratic party and avid supporters of democratic candidates. To return the favor for all the assistance that unions provide the democratic party, and to hold on to the unions' support and money, it is likely that a democratic President and democratically controlled House and Senate will yield passage of the EFCA.

So, the unions are in a vetting process right now to see whether Clinton or Obama will be the one to acede to the White House and bring them their coveted prize--the EFCA. Recently, Service Employees International Union (SEIU), a large service industry union, backed Obama. Earlier in January, UNITE HERE, another large union comprised mailny of textile and service workers, also backed Obama. Both SEIU and UNITE HERE seem to favor card-check recognitions over National Labor Relations Board (NLRB) elections. Thier endorsement of Obama is a ringing endorsement that, in thier eyes, he will be the one to most effectively get the EFCA passed.

As we get closer to the general election we will begin to see the issues more narrowly defined. One such issue will be the EFCA. The economy is likely to be on the forefront and with that will come a dialogue on the EFCA. Once this dialogue opens, expect the storm to start brewing.

PA Dems Vote to Strip Workers of Free Choice

DRumack@foxrothschild.com (Darren Rumack) — Tue, 15 Jan 2008 11:43:56 -0500

The Pennsylvania Democratic State Committee has come out firmly in support of labor unions when they voted to endorse the Employee Free Choice Act. This should not comes as a surprise to anyone following the 2008 election campaign given that every Democrat Presidential Candidate has also issued their blanket support for the EFCA. However, the lack of internal debate over the EFCA is disconcerting.

As this blog has discussed on numerous occasions, the EFCA would dramatically overhaul private sector labor relations in this country on a scale not seen since the passage of the National Labor Relations Act itself.

The fact that there has been little internal discussion by the Democrats over the EFCA’s potential effects is a prime example of the power of union endorsements for elections overriding the need for serious discussion over the EFCA’s ramifications. Should the EFCA ever be passed into law, it is unlikely that any serious debate will accompany the legislation.