Senate to ponder Employee Free Choice Act

January 9, 2009
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The Employee Free Choice Act is expected to be one of the top priorities of the Obama administration. President-elect Barack Obama is a principal supporter of the bill, which would make union organization quicker and easier. 

The House passed the legislation in March 2007, but the bill stalled in the Senate on June 26 after legislators failed to reach the 60 votes needed to cut off debate. The 51-48 talley was strongly divided along party lines. Every Senate Democrat and two independents backed the legislation, whereas only one Republican favored it, according to Congressional records.

The bill is the No. 1 priority of organized labor, said Kurt Sherwood, a principal in Miller Canfield’s Kalamazoo office and a member of the firm’s Labor and Employment Group. Miller Canfield is presenting seminars on the subject to employers throughout Michigan, including one in Grand Rapids Jan. 28.

As passed by the House, the act would amend the National Labor Relations Act to require the National Labor Relations Board to certify and recognize a union if 50 percent of employees, plus one, sign card authorizations. No secret ballot election would have to be held. If the parties fail to reach an initial contract agreement within 90 days, either party could request assistance from the Federal Mediation & and Conciliation Service mediators. A federal mediator would come in and work with both parties for 30 days. If mediation fails, FMCS would send the matter to an arbitrator or an arbitration panel that would determine the terms of the contract, and it would be binding for two years.

As currently written, it would be the most significant labor legislation in decades, Sherwood said.

“The arbitrator would decide what the contract is going to be and what pay and benefits the employer is going to give, and the terms and conditions would be imposed on the employer for two years,” Sherwood said.   

Under the current Labor Relations Act, if one-third of employees in a company sign cards saying they’d like to hold an election, the National Labor Relations Board files a petition and schedules an election by secret ballot, Sherwood explained. If a majority of employees in the secret ballot election choose to be represented by the union, the board certifies the union and the parties have one year to negotiate a collective bargaining agreement.

“If the National Labor Relations Board were to certify unions based only on a showing of cards, there would really never be an opportunity for the employer to tell his side of the story,” Sherwood noted. “As it is now, once a secret ballot election is scheduled, the employer is aware of what’s going on and has an opportunity to tell his side of the story.” 

Under the House version of the bill, civil penalties and remedies for violations of NLRA would increase: Employers could be subject to triple back pay to affected employees in some cases, injunctions in other cases, and substantial fines for willful or repeated violations of employee rights during the union organization process, according to Miller Canfield. 

Proponents of the legislation argue the change is necessary to protect workers’ rights to join unions. Opponents contend that the use of card check elections — as opposed to secret ballot elections —  will lead to overt coercion on the part of union organizers and the measure would not protect employee privacy.

“The feeling is that the Free Choice Act will probably pass in some form, but we’re really unsure what form that will be,” Sherwood said. “As time goes by, it seems less and less likely that it will pass in the version that went through the House before. I can’t guarantee that, but there is some speculation that there will be additional opposition in the Senate, so there is speculation that some type of compromise might be the final product of this legislative process.”

Sherwood said employers need to be cognizant of the fact that the Free Choice Act is out there. The message Miller Canfield is trying to get out is that there are a lot of union-free and partially unionized employers who aren’t terribly familiar with the National Labor Relations Act and union organizing campaigns, and what they can and cannot do legally, Sherwood explained.

“We want to let these employers know that they do need to educate themselves about Free Choice. Surprisingly, I’m still finding a lot of employers who are not familiar at all with Free Choice and its ramifications.”  

David Smith, president and CEO of The Employers’ Association, said employers do not seem to be as concerned about the legislation as they should be. TEA has held a couple of seminars and briefings on the subject and has posted notices about it in its newsletter. Smith has also addressed it in board meetings and has been communicating regularly about it with people within his organization, as well as with the National Association of Manufacturers.

“It’s a scary thing, potentially,” Smith said. “The first briefing we scheduled on this was in November and only three to five people came. That was after we had already talked about it and put mentions of it in our newsletter. We’ve put a lot of effort into discussing and talking about this. When I told my board about it in November, they were shocked and worried.”

What Smith dislikes most about the legislation is that it does away with secret ballot elections in the union organization process. From his perspective, there are a lot of negatives in the bill and some, but not many, positives.

“Employers just are not really as concerned with it as I think they should be,” Smith remarked. “I think in West Michigan we tend to go to sleep a bit on these kinds of things because we do have a paternal attitude toward employees and have not had strong unionization here. And from the companies that have been unionized, we’ve seen some negative results.” 

Information on the Miller Canfield seminars can be found under News & Events at

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