Monday, May 18, 2009

What's EFCA?

First things first: For those relatively new to the issue, I wanted to provide a primer for what exactly the Employee Free Choice Act is and why it's important. What follows is my summation. I am completely open to adjusting it with more/better content as well as links to verify information. If you have anything to add, feel free to comment or email me and I will try to improve this post as time passes. This post will remain fixed under "Basics" in the upper right-hand corner of this blog.

There are three main provisions in EFCA. For each component I have included the important language, an explanation of what the language means, and why each change is important:

(6) … If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).
Explanation: This is the item that has been branded as “card check,” and has been the focus of most public debate about the Employee Free Choice Act. Currently, when a labor union is attempting to unionize a unit of employees, they gather signatures on union cards. When 30% of workers in a unit have signed a union card, an election is held and members vote on whether to form a bargaining unit or not. This provision negates the need for the election. It’s saying that when you sign a union card, you’re “voting” to form a union, and since you sign it in “public,” which in this situation means anywhere outside an anonymous, formal ballot, you’ve forfeited your right to a “private” election.

Importance: This will simply make it easier for unions to form collective bargaining units by removing an existing step in the process. The time between when workers sign a union card and subsequently conduct a vote is time that employers can use to convince workers to vote against union formation. I’m unaware of what percent of the time card drives are successful but union votes fail, but suffice to say that the card check provision would negate this possibility.

`(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:

`(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized…parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.

`(2) If after the expiration of the 90-day period… the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation…

`(3) If after the expiration of the 30-day period…the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board…The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years…
Explanation: This part is fairly self-explanatory. After the workers choose to join a union, they have 90 days to negotiate a contract with their employers. If that doesn’t work, the Federal Mediation and Conciliation Service steps in and tries to find an agreement. If, after 30 days, that doesn’t work, an arbitration panel convenes, and settles on a two-year binding labor agreement.

Importance: People who are peripherally following this issue might not be aware that this provision is hugely important, arguably even more important than “card check.” Right now, if a group of employees decides to unionize, that decision is only valid for one (1) year. During that time employers are obligated to engage in a “good faith” effort to reach a contract with their employees. From what I’ve been told, a contract is agreed upon roughly 50% of the time. But employers know the clock is ticking and often drag their feet until the year is up, leaving the union essentially invalidated. Engaging in an organizing effort is time consuming and difficult, even once. If employees decided to vote to organize, and subsequently failed to reach an agreement for an entire year, it can be doubly difficult to try a second time. This provision would literally double the chances of a union organization effort that results in a contract.

Remedies for Violations-
(1) BACKPAY- …That if the Board finds that an employer has discriminated against an employee in violation…while employees of the employer were seeking representation by a labor organization, or during the period after a labor organization…the Board in such order shall award the employee back pay and, in addition, 2 times that amount as liquidated damages: Provided further,'.

(b) Any employer who willfully or repeatedly commits any unfair labor practice…while employees of the employer are seeking representation by a labor organization or during the period after a labor organization has been recognized as a representative…be subject to a civil penalty of not to exceed $20,000 for each violation…
Explanation: Again, pretty self explanatory. This section describes the potential penalties that employers would face for violating labor laws and regulations.

Importance: Currently, the sanctions for labor violations are light (does anyone have details on this point, I’m unaware of what current penalties are?). Thus, the relative cost of violating labor law is low and (if you ask anyone doing labor work) violations are common. Correspondingly, the hope is that adding some teeth to the sanctions would make violations less likely.

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