The Employee Free Choice Act’s deceptive name isn’t the only thing confusing about the bill. Reading it line for line will likely leave more unanswered questions than actual answers. We’ve answered a fair number of them here, but there are still a lot of unknowns.
Case in point is this article from labor lawyer Daniel Johns:
1. How Closely Will The NLRB Regulate Cards And Card-Signing?
Given the use of union cards in the current NLRB representation process – to establish the requisite 30 percent support for filing a union representation petition – the NLRB has traditionally taken a hands-off approach with respect to their regulation. Employers are not allowed to inspect cards, and the NLRB does not generally allow employers to litigate at a representation hearing issues such as fraud, forgery, or coercion in the union’s obtaining of cards. The NLRB also generally does not invalidate cards on the basis of timeliness so long as the cards were signed during the current organizing campaign.
A hands-off approach towards the timeliness and manner in which cards have been obtained makes sense in a system in which cards do not determine the final result. However, when the signing of cards is the whole ballgame – as it is with EFCA – the NLRB cannot continue to cast a blind eye toward card abuses. Moreover, how can a six-month-old card, or a month-old card for that matter, be viewed as a current expression of an employee’s interest in union representation? Feelings change about unions, particularly when there is not a union organizer blocking an employee’s car in his driveway and asking the employee to sign a card so that he can leave his house. Will the NLRB continue to keep its distance from card abuses and timing questions in an EFCA world?
2. What Is The “Laboratory Conditions” Period For Purposes Of A Card Campaign?
The NLRB generally requires that there be “laboratory conditions” during union representation campaigns. Such a requirement is important so that employees can express their true desires about unionization free of threats and coercion. To support the “laboratory conditions” necessary for a fair election, employers are generally prohibited from changing the terms and conditions of employment for bargaining-unit employees during a campaign. The NLRB is particularly stringent about violations of the “laboratory conditions” period with respect to abuses that take place immediately before or during the voting period.
This concept encounters problems with EFCA because there are potentially no starting or stopping points for union campaigns. Will an employer be expected to maintain the status quo indefinitely once a few cards have been signed? How will the NLRB establish notice of a card-signing campaign in the absence of a petition? Will the NLRB strictly apply the “laboratory conditions” standard to the behavior of union representatives obtaining cards? Will the current NLRB scheme of regulating campaign conduct be scrapped once we enter the realm of the never-ending union campaign? These questions simply must be dealt with if there is any hope of a fair and rational NLRB-representation process in an EFCA world.
3. What Would The Process Be For A Decertification Campaign?
EFCA is silent on the process for decertifying a union as the representative of employees. Surely, unions cannot promote the replacement of secret-ballot elections when it comes to representation elections while also advocating those same purportedly faulty secret-ballot elections for decertification campaigns. Would decertification be ordered based purely on an employee petition signed by more than 50 percent of the bargaining unit? Would the NLRB develop a sample decertification card for employees’ use in such a campaign? Why should it be harder to get rid of a union than it is to get one?
4. Would Employers Have A Right To Appeal Unfavorable Interest Arbitration Decisions?
EFCA provides nothing about an employer’s (or union’s) right to appeal an interest arbitration decision that it believes is unreasonable or economically infeasible. If there is a right to appeal interest arbitration awards (and there is nothing in the proposed legislation to suggest that there is), what court or agency would hear it? What standards would be used to consider such an appeal? Is there any way to obtain relief from an untenable and burdensome interest arbitration award?
5. Do Employees Have The Right To Strike During Interest Arbitration Proceedings?
Most public-sector employees who fall under interest arbitration laws, such as police officers and firefighters, do not have the right to strike. EFCA is silent on employees’ right to strike while an interest arbitration proceeding is pending. Would employees have the right to strike while participating in an interest arbitration proceeding? How can arbitrators calmly and rationally decide what a first contract should be while employees are on strike?