Senate Democrats pull back on Specter’s card-check prediction

The Hill
September 17, 2009


Specter, Unions Disagree on Path for Overhaul of Labor Laws

The Wall Street Journal
September 16, 2009

more media


Using the rationale of protecting “employee free choice,” Congress is considering the most significant change to the nation’s labor laws in 60 years. Under EFCA, if a union obtains signed cards from 50% plus one of an employer’s workers, those workers would be represented by that union without the employer even knowing that a union was being considered. Furthermore, if the employer finds the union demands unacceptable, and cannot negotiate an agreement, a federal arbitrator will dictate the terms of the initial two year contract without the employer having any say.

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Union Certification Process Tilted Toward Unions

Unions already prevail in the majority of certification elections under the current system. A recent report by the Bureau of National Affairs (BNA) showed that unions won 66.8 percent of NLRB-supervised private ballot representation elections in the first six months of 2008. EFCA further tilts the process toward unions by making it easier for unions to be certified, even if a majority of employees do not wish to be represented by a union.

Under EFCA, if a union files a petition with the NLRB backed by authorization cards signed by a majority of the employees (50 percent plus one), the Board “shall not direct an election but shall certify the … labor organization as the representative.” Under EFCA, the unions, following their admitted practice of not filing a petition with less than a majority of authorization cards, would foreclose the option of a private-ballot election. Instead, the law would mandate that the NLRB, instead of conducting a private-ballot election, automatically certify the union as the bargaining representative of the employees even if the employees would prefer an election.

Unlike the current NLRB process, which typically involves a five week period in which the employees hear all sides of the issue from the union, the employer and their coworkers, the bill would rely exclusively on the card-signing process in which only the union’s views are heard.

Government Arbitration

EFCA provides for mandatory arbitration (setting contract terms) for newly organized employees if an employer and union cannot reach agreement within 120 days. Interest arbitration is extremely rare in private-sector labor relations, and is used only when an employer and union both voluntarily agree to have an arbitrator decide disputed contract issues instead of resolving them through collective bargaining.

Under EFCA, a government arbitration panel — not the parties — would write the terms of the contract. There is no assurance that the panel would have any familiarity with the workplace and industry, even though it ultimately would decide the rules that govern almost all aspects of employment. The contract written by the government arbitrator would be in force for two years regardless whether it is unfair or an economically harmful decision that costs the employees their jobs. There is no right to appeal such a decision under EFCA.

EFCA would dramatically transform the role of arbitrators from interpreting the contract negotiated by the employer and the union to actually writing the contract, making critical economic decisions impacting the employer’s business model and ability to remain competitive. Employers would be given no right of review, and employees, already denied the right to a secret ballot election on union representation, would further be denied the right to vote on the contract mandated by the arbitration panel.

New Penalties for Employers but Not Unions

The bill abandons the traditional “make whole” approach of the NLRA by adding new and enhanced enforcement provisions and penalties in situations where employees are being organized or first contract negotiations are taking place. Make whole means the employee is put back in the same position and paid the same amount of money (“backpay”) as if the employer had not violated the law.

EFCA would provide for liquidated damages of three times back pay if employers were found to have unlawfully terminated pro-union employees. Under current law, the employer only owes back pay. EFCA also would impose a $20,000 penalty on the employer each time the NLRB and/or a court decides the violation was willful or repetitive and the violation occurs either while the union is seeking to organize the employer’s employees or the while the employer and union are negotiating the initial contract.

Significantly, these provisions would only apply to employer — not union — violations, even though unsupervised card check organizing lends itself to coercive union tactics. In other words, the penalty provisions in EFCA are completely one-sided.

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