The Employee Free Choice Act (“EFCA”), the bill that would have altered
the way in which unions are allowed to organize workers, was introduced
in both chambers of the United States Congress on March 10, 2009. Among
other things, EFCA (sometimes also known as the “card check” bill) would
have eliminated the time-honored right to the secret ballot in union
elections, required employers to submit to binding arbitration if a
first contract could not be reached (which would allow a third-party
arbitrator to dictate to an employer the pay and benefits that must be
provided to its employees and the work rules applicable to employees),
and increased financial penalties and reporting obligations only for employers.
In short, EFCA would have tilted the rules in favor of unions and
reduced employees’ rights. As a result, and after a backlash from the
voting public, Congress wisely decided to abandon its efforts to pass
EFCA.
This legislative failure, however, has not stopped organized labor
interest groups and the Obama administration from engaging in a
concerted effort to make an end-run around Congress. Indeed, the
administration (after lobbying efforts by organized labor) is now
attempting to implement many of EFCA’s provisions through the regulatory
and administrative rulemaking process.
The National Labor Relations Board (“NLRB”) has recently issued proposed
rules that will unilaterally implement many of the EFCA provisions
which would have decreased the fairness of union elections. For example,
the proposed rules again seek to do away with the right to a secret
ballot election by allowing the usage of e-mail and mail voting in union
elections. The primary goal of this proposal is to require employees to
cast their votes outside of the voting booth and without the strict
supervision of government observers who are present to ensure fairness.
Additionally, the proposed regulations would require union elections to
take place in as few as ten days from the filing of a petition for
election. Currently, the average election cycle is slightly more than 40
days from the filing of the election petition. During this period,
employees have time to consider all of the information presented by both
the employer and the union, and fully consider his or her position
prior to casting a vote on unionization. But unions want employees to
make emotionally-based “snap” decisions. By reducing the time for an
election through administrative rulemaking, the unions and
administration are seeking to curtail an employer’s ability to fully
inform its employees about all of the issues associated with
unionization.
The unions’ and administration’s desire to force employees to vote
without a balanced presentation of information from both sides is made
even more evident by proposed regulations that were issued,
contemporaneously with the NLRB regulations, by the United States
Department of Labor (“DOL”). Those regulations seek to inhibit an
employer’s ability to seek advice from an attorney or consultant
regarding a union election campaign. Indeed, the proposed DOL
regulations would impose onerous and expensive reporting obligations
upon attorneys or consultants who provide advice to employers during a
union election campaign. Failure to follow these reporting requirements
would result in federal criminal liability. The end result is that such
regulations would have the effect of deterring an employer from engaging
union election specialists to help with a union campaign and to advise
the employer on how to best provide information to its employees about
the real costs of unionization.
These are only a few examples of the ways in which the unions and the
administration are trying to revive EFCA through the rulemaking process.
NLRB rule changes have also imposed greater financial penalties only on employers
(as EFCA sought to do) and recent NLRB decisions have demonstrated an
intention to promote unionization. If this regulatory agenda is allowed
to progress, the ultimate result will likely be an uptick in union
organizing efforts, higher costs for employers, unfair union elections
and the erosion of employee rights. It is crucial that employers submit
comments opposing the proposed administrative rules and otherwise make
it known to elected officials that EFCA should not be implemented on a
patchwork basis through the regulatory and administrative rulemaking
process. Comments regarding the proposed NLRB election regulations can
be submitted until August 22, 2011 either electronically at
www.regulations.gov (Regulatory Info. No.: 3142-AA08) or by mailing them
to the NLRB’s Headquarters (Attn: Lester A. Heltzer, Executive
Secretary) at 1099 14th Street N.W., Washington, D.C. 20570-0001.
Comments regarding the proposed DOL campaign advice regulations can be
electronically submitted until September 21, 2011 at www.regulations.gov (Regulatory Info. No.: 1245-AA03).
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