Representative George Miller (D-CA), Chairman of the
House Education and Labor Committee introduced H.R. 1409, the Employee Free
Choice Act. The late Senator Ted
Kennedy (D-MA), Chairman of the Senate Health, Education, Labor and
Pensions Committee, introduced S 560, the companion bill in the Senate.
President Obama made passage of this legislation one his
While it seems like this legislation has been discussed
forever, there have been no votes on it in this Congress. The House majority decided to wait until
the Senate acted.
Under current law, individuals interested in organizing
a union must file a petition with the National Labor Relations Board
(NLRB). This petition must
demonstrate that 30 percent of potential union members want to have a union
organizing election. Generally, the
potential union members sign an authorization card indicating their desire
to join a union. Importantly, within
45 days of receiving the petition, the NLRB then will conduct a secret
ballot election to let employees decide whether they want to join the
union. The secret ballot election
allows employees to choose in private whether or not they wish to join the
Instead of using a petition to force a union election,
under the proposed legislation, if an organizing campaign can collect
signed authorization cards or a petition from more than 50 percent of the
employees (this is often referred to as the "50 plus one" rule as
the cards must collected from 50 percent of the employees plus one more
employee), an employer would be required to recognize the union. There would be no secret ballot election
in such a case.
The legislation also provides for the mediation and
binding arbitration of the initial collective bargaining agreement
following any recognition of the union.
The parties must begin collective bargaining within 10 days of
receiving a request for bargaining from the other party. If the parties do not execute a
collective bargaining agreement within 90 days of the start of bargaining,
either party may request mediation from the Federal Mediation and
Conciliation Service (FMCS.) The
FMCS is directed to use its best efforts, via mediation and conciliation,
to then bring the parties to agreement.
If, 30 days after mediation request is made, there is still no first
contract, the FMCS is directed to refer the contract negotiations to an
arbitration board, under regulations as may be prescribed by the FMCS. The arbitration board must issue a
decision settling the negotiations, binding on the parties for two years.
The legislation outlines penalties against employers
that illegally fire or discriminate against workers for their union
activity during an organizing or first contract drive. It also will require the NLRB to seek a
federal court injunction against an employer whenever there is reasonable
cause to believe that the employer has discharged or discriminated against
employees, threatened to discharge or discriminate against employees, or
engaged in conduct that significantly interferes with employee rights. It further authorizes the courts to grant
temporary restraining orders or other appropriate injunctive relief.
This bill also triples the amount of the employee's back
pay when an employee is discharged or discriminated against during an
organizing campaign or first contract drive. Finally, the bill will provide for civil
fines of up to $20,000 per violation against employers found to have
willfully or repeatedly violated employees' rights during this process.
Many unions and their supporters believe that the NLRB
elections are stacked against those who wish to form a union. They believe that it is unfair to give
the employers the secret ballot election option when a majority of
employees have expressed support for a union, asserting that employers are
able to leverage more anti-union votes when the election is held in
private. H.R. 1409/S. 560 would
leave that decision in the workers’ hands and allow them to choose
which avenue to form a union.
Supporters also believe that the current penalties
against “employer intimidation” are too soft and do not provide
an effective deterrent against such interference. They believe that the stronger penalties
in H.R. 1409/S. 560 will send an appropriate message to employers to give
their workers’ the freedom to choose whether to form a union.
Opponents of H.R. 1409/ S. 560 believe that it will have
the converse effect. Rather than
employer intimidation, it will encourage union intimidation. They contend that the authorization
process will allow those who support the formation of unions to coerce
employees into signing the card, as the “votes” will now be
made public, instead of the private votes offered through secret
elections. Without the regulated,
and secret, election system provided by the NLRB, the proposed open
authorization card process will be vulnerable to bullying and deceptive
tactics. Furthermore, the
authorization cards would be susceptible to fraud through forged
The National Labor Relations Act is the basic law from
which the NLRB derives its authority.
The authority is very broad; generally, it has jurisdiction over any
enterprise whose operation affects commerce, with “commerce”
meaning interstate commerce but “affects” interpreted to
include indirect activity. There are
some specific exclusions for types of employees, most notably agricultural
laborers, but there is no exclusion based on the number of employees.
The NRLB has the discretion NOT to assert jurisdiction
over enterprises. The NLRB’s
requirements for exercising its power or jurisdiction are called
These standards are based on the yearly amount of business done by
the enterprise, or on the yearly amount of its sales or of its
purchases. They are stated in terms
of total dollar volume of business and are different for different kinds of
enterprises. Most of the
Board’s current standards were set on July 1, 1990. The ceilings on these exclusions are very
low. The two most notable for small
Nonretail business: Direct sales of goods to consumers
in other States, or indirect sales through others (called outflow), of at
least $50,000 a year; or direct purchases of goods from suppliers in other
States, or indirect purchases through others (called inflow), of at least
$50,000 a year.
Retail enterprises: At least $500,000 total annual
volume of business.
There are separate “exclusion” amounts for
several specific categories such as hotels, motels and residential
apartment houses, or newspapers.
More information on specific exclusions can be found at
From the beginning of this Congress, it has been all
about the 60 votes necessary to invoke cloture and end a filibuster.
Before he changed parties, Senator Arlen Specter (D-PA)
announced his intent to oppose the bill in its original form and he
re-affirmed his opposition after changing parties. This appeared to pour cold water on the
prospects for the bill.
Since then, efforts have focused on a compromise. The secret ballot requirement will be
retained. The changes in the rumor mill
seem to swim around the process such as giving organizers more access to
the workplace; reducing employers’ communication rights and/or
increasing organizers communication rights; speeding up the election cycle;
or, making it easier to cast the ballots.
Even with Senator Al Franken’s (D-MN) swearing in,
the majority has to persuade Senator Specter and perhaps some Democrats to
vote to invoke cloture.
If health care reform becomes law in 2010, the fate of
this legislation may hinge on whether unions are happy or not with the
outcome of the health care debate.
If they are not, this may be the consolation prize.
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