Once certification has occurred, the parties must begin bargaining within 10 days from the union's request. If the parties are unsuccessful in reaching an agreement after 90 days, they may ask the Federal Mediation and Conciliation Service (FMCS) to assist the parties in reaching an agreement, a process that may last for up to 30 days. EFCA then mandates that in the event the parties are unable to reach in agreement with in 120 days from the date the union was certified as the bargaining representative, mandatory arbitration of the terms of the first agreement would occur. As proposed, arbitration panel’s decision would remain in effect for two years, unless parties otherwise mutually agreed in writing.
The EFCA also introduces the concept of penalties for discharges that occur during organizing drives and in the time period before the first contract is achieved. The wrongfully discharged employee would be entitled to back pay, together with two times the back pay amount as a penalty. Employers found to have engaged in willful or repeat violations may be fined up to $20,000.00 per occurrence.
Organized labor's support for President Obama is considered by organized labor to have been essential to his election. The unions have a significant agenda of change that if passed, will significantly increase union membership, which has been slipping for decades.
While there are enough votes in the United States Senate to pass EFCA, the opponents apparently have enough votes to prevent a vote on the passage of the EFCA. However, the Senate vote count is extraordinarily close. At least two of the senators previously counted upon to support the EFCA have changed their position. However, one Republican senator who previously supported another version of EFCA has indicated that without significant labor law reform short of the EFCA, he may change his position and support EFCA.
Regardless of whether EFCA passes, it is a near certainty that some labor reform will be implemented. It is anticipated that organized labor will resurrect the RESPECT Act. The purpose of this legislation would be to overturn existing law on the definition of supervisors. If this Act were to pass, individuals previously precluded from bargaining would be able to be involved in organizing campaigns, support unions and belong to unions.
Under the RESPECT Act, supervisors would have to spend a majority of their time actually hiring, transferring, suspending, laying off, recalling, promoting, discharging, rewarding, or disciplining employees to be statutory supervisors The net impact of this change would be to dramatically decrease the number of individuals that previously were supervisors under existing law and to increase union membership.
Another change to traditional labor law that is being sought is to prohibit the use of permanent replacements when employees go on strike. Under existing law, employers may permanently replace striking employees in order to continue to operate during the strike.
Organized labor's wish list for changes to well-established labor law is long. All employers should be concerned about these and other bills that are pending in Congress. Not since President Carter's term in office has organized labor sought such sweeping changes. With the House of Representatives and the Senate firmly in Democratic control, it will be through the minority being able to block these measures from coming to votes that the status quo has any hope of being preserved.
Both organized labor and the business community are putting significant pressure on legislators to support their respective positions. All employers should get involved so that their position on these critical issues is communicated to their elected representatives.
--Thomas W. McLane
