On Tuesday, Sept. 15, 2009, Sen. Arlen Spector (D-PA) spoke to the AFL-CIO convention in Pittsburgh. At the convention, Sen. Spector informed the AFL-CIO that through his back room dealings he has worked out a compromise on the Employee Free Choice Act (“EFCA”) that he believes will receive enough support from the blue dog Democrats to get it out to the Senate for a full vote, and, in turn, to have it signed into law by year’s end. Many people are calling this proposal EFCA “Light.” Unfortunately, it doesn’t taste great and it is only marginally less filling.
Sen. Spector’s proposal involves several changes to the original EFCA proposal. First, EFCA as originally proposed allowed unions to organize employees through card checks if the union was able to get more than 50 percent of a proposed voting unit to sign Union cards. Most Republicans and many blue dog Democrats as well as the U.S. Chamber of Commerce opposed this provision because it removed elections from the organizing process. EFCA “Light” has jettisoned the card check proposal. In turn, however, EFCA “Light” seeks to reduce the amount of time between the filing of a union election petition and the election. Currently the National Labor Relations Board’s (“NLRB”) internal guidelines suggest that elections should occur within 42 days of the filing of a union election petition. While Sen. Spector did not give precise time frames in his speech to the AFL-CIO, he has previously suggested that “cram down” elections should occur within three weeks of a union election petition being filed. Such a proposal, of course, puts employers at a disadvantage when it comes to educating their employees on the company’s position as to unionization.
The second change that Sen. Spector has proposed is that if the employer holds captive audience presentations during the period between the union’s filing of an election petition and the election, the union would be afforded access to the employer’s property to observe the presentation and be provided with equivalent time to make captive audience presentations to the employees. Such a provision would be a monumental change to labor law since it would ignore the employer’s private property rights. Currently unions, absent egregious unfair labor practice findings, are not allowed access to employer’s property or equal time with employees during the work day. Sen. Spector’s “compromise” is troubling and is likely to receive great attention by employers and the Chamber of Commerce.
Next, Sen. Spector has tried to tackle the controversial interest arbitration provisions of EFCA. Under the original EFCA proposal, if a collective bargaining agreement was not reached within 90 days, a union could request that the parties go to arbitration to reach a collective bargaining agreement. The union movement suggests that such a process is necessary because many times after a union is elected to represent a group of employees, it is unable to obtain a collective bargaining agreement. The original proposal was controversial both on a constitutional level and as an about-face to 70 years of labor law. Sen. Spector’s compromise suggests that while interest arbitration would still be available, the neutral arbitrator would only be able to select either the company or the union’s last bargaining offer. Sen. Spector believes that this process would ensure that negotiating parties would make reasonable proposals for fear of being shut out in an interest arbitration. Whether such a process would in fact work is suspect. It has not been very successful in major league baseball, certainly from the owner-employer’s perspective.
Finally, Sen. Spector would retain EFCA’s change to the penalties that could be imposed under the National Labor Relations Act (“NLRA”). Currently the NLRA is a remedial statute that only seeks to place the parties back in the position they were prior to the commission of an unfair labor practice charge. There are no penalties or fines under the NLRA. Under Sen. Spector’s proposal, employers could be fined up to $20,000 for each violation of the NLRA and, in addition, any employer who is seen to have engaged in a willful or repeat violation could be subject to treble damages.
EFCA “Light” is still problematic. It behooves all employers to continue to monitor the process and to voice their opposition to EFCA. The system is not broken despite the union’s angry cries.