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Dollars & Sense

A Primer on the Employee Free Choice Act

By Jason McGlone
Posted Mar 3rd 2010 4:27AM
What EFCA Is

The Employee Free Choice Act (EFCA) is a bill that's been bouncing around the US Congress for the last few years.  The chances are pretty good that you've heard something about it--but given that it's still on the block, and doesn't look to be exiting terribly soon, it's probably worth something of a summary.  We'll look at what EFCA proposes in its most current form, what proponents and opponents of the bill are saying it will do, and then formulate some questions about the bill and how you think it will affect you, either as a business, Owner/operator, fleet owner, driver, etc. 

What it Proposes, In Terms of Changes

The simplest way to look at the changes that the Employee Free Choice Act proposes is to compare and contrast the generalities of the bill to the generalities of how things have been run with respect to unions until now (and perhaps beyond, depending upon what happens in Congress).  Let's assume that we're looking at a non-union shop, and that some of the employees of that shop are interested in unionizing. 

There are a couple ways that these employees can unionize.  The first of these is known as a "card check," which is essentially a majority sign up, wherein employees sign cards asking to be represented by a union.  The second is through an election process with a secret ballot, similar to political elections.  Currently, the employer chooses which process will be used, but the National Labor Relations Board will only certify a union as an employee representative if the employer agrees to the card check process or if there's an election--and the only way an election can take place is if 30 percent of employees request union representation (and this is through a card-check process). 

Since the employer can choose which process is to be used, it can refuse to bargain with a union until after an election is held, even if, say, 100 percent of its employees sign cards during a card-check process.  Potentially, this means that even if employees succeed in gaining union representation for themselves, the employer can forestall bargaining proceedings to the point where its employees can't get a labor contract quickly. 

These are all legitimate concerns, and it's these things that the EFCA looks to change--and while you might not hear an awful lot about it in the news (I know I haven't), it's a pretty hotly contested bill. 

Specifically, the bill will do these things:

It would require the National Labor Relations Board to certify a union without having to hold an election if a majority of employees signed cards during the card-check process.  Essentially, it would take some of the power of whether a company's employees belong to a union away from the company and place it more firmly in the hands of its employees. 
That doesn't mean that the secret ballot election would go away--in cases where 30% of employees want an election, they'll get one.   If the company and the union can't agree on a contract within 90 days, the bill provides for referral to the Federal Mediation and Conciliatory service for mediation.  If mediation fails after 30 days, the process is stepped up to arbitration, which would be binding on the two sides for two years.
There will be stricter penalties against businesses that violate the National Labor Relations Act--to the tune of about $20,000 per violation. 

Supporters Say...

Supporters of the EFCA are saying that the bill is necessary to ensure that workers can join unions and that currently, businesses have too much power when it comes to the abilities they have with respect to choosing a card-check or election process.  They also say that the bill would allow them to more easily advocate for fairer wages, work conditions, and better benefits without the threat of harrassment (or worse) by their employers.  Finally, in reference to the raise in potential penalties, supporters say that these increases represent a more serious commitment to keeping companies from violating laws designed to protect American workers. 

Opponents Say...

Opponents of the Employee Free Choice Act say that changes in how employees can unionize may open the door to coercion by union organizers, and that these changes would be counterproductive for employee privacy.  With respect to the EFCA's provision for mediation and arbitrations for first contracts, opponents say that these procedures could hinder competition and innovation, as well as that they represent a significant interference into businesses' affairs.  Perhaps the strongest opposition to the bill has been with respect to the potential removal, in certain cases, of the secret-ballot voting, citing that this could be damaging to the democratic nature of the country. 

So, What of it?

Pro or against, it's clear that this bill could prove important to the expediting industry, given that there are union and non-union carriers and companies.  It's important to note that the bill hasn't passed yet, and that the coming Congressional session will be giving the EFCA a close look.  It's more or less a foregone conclusion that it'll be a bit different in terms of the nitty gritty details should the bill pass this year.  There hasn't been too much word over the past few months as to just what's happening, what with the healthcare reforms bouncing around, but you're sure to start hearing the inevitable media rumblings once that gets shelved--if it ever does, that is. 

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