Summary and Background
On March 1, 2007, the House of Representatives passed H.R.800, the Employee Free Choice Act of 2007, on a 241-185 vote. On March 2, the bill was placed on the Senate Legislative Calendar. On June 19, Majority Leader Reid filed a cloture motion to proceed to the legislation.
H.R.800 would amend the National Labor Relations Act of 1935 (NLRA) to require the National Labor Relations Board (NLRB) to certify a bargaining representative without an election if a majority of the employees in a bargaining unit sign authorization cards. The legislation would also set a waivable timeline for reaching a first contract agreement once a representative has been certified or recognized and the bargaining has commenced. Further, the bill would create or increase penalties for employers who engage in coercive behavior during the union organizing or first contract process.
The NLRA establishes the parameters by which workers can join or form a labor union and bargain collectively via a representative over wages, hours, and other employment conditions. The Act also protects the right of workers to not join a union and prohibits certain coercive behavior by employers and unions with respect to organizing. Under current law, the NLRB conducts a secret ballot election to select a bargaining representative if at least 30 percent of workers have signed a petition or authorization cards in favor of a union.
In the alternative, current law allows an employer to voluntarily recognize a bargaining representative if a majority of the workers have signed authorization cards. An employer and union organizers may also enter into a card check agreement before the organizers begin to collect signatures. This agreement often requires the signatures of a supermajority of employees and validation by a third party.
H.R.800 would extend the right to select a union via the majority-sign up process to workers. Currently, the employer controls this decision.
Streamlining Union Certification. Section 2 of H.R.800 would amend the NLRA to require the NLRB to investigate a petition filed by an employee or group of employees (or a labor organization working on their behalf) which states that a majority of the employees in the covered unit want to select a bargaining representative. If the NLRB finds that a majority of the employees signed valid authorizations designating the bargaining representative referenced in the petition (and that no other bargaining representative is currently certified or recognized for the same unit), the NLRB must certify the representative without requiring an election.
(Hereinafter this process will be referred to as “majority-sign up” and signed valid authorizations will be referred to as “authorization cards.”)
The legislation would also direct the NLRB to develop guidelines for selecting a bargaining representative via majority-sign up. The guidelines would include model language for authorization cards and procedures to verify the validity of authorization cards.
Facilitating Initial Collective Bargaining Agreements. Section 3 of H.R.800 would amend the NLRA to require that parties meet and begin bargaining for a first contract no later than ten days after receiving a written request from the newly certified bargaining representative. If, after 90 days, no initial contract has been agreed upon, either party can request mediation by the Federal Mediation and Conciliation Service (FMCS). (However, the parties can always agree to extend the 90 day bargaining period by mutual agreement.)
If mediation is requested, the FMCS must promptly work with the parties to form an agreement. If, after 30 days of the mediation request, there is still no contract, the FMCS may refer the dispute to an arbitration panel. (Again, the 30 day period can be extended by mutual agreement, and the parties can always mutually agree to return to the bargaining table.) If the parties proceed to arbitration and do not successfully reach agreement on their own before the end of the arbitration process, the arbitration panel will impose contract terms with respect to any issues that the parties have not yet decided. The arbitration panel’s decision would be binding on both parties for two years, unless amended by written consent of the parties.
Strengthening Enforcement. Section 4 of H.R.800 would amend the NLRA to require the NLRB to seek injunctions against unfair labor practices committed by an employer during a union organizing drive. (Such injunctions are already required for unfair labor practices committed by unions under current law.) Employer misconduct subject to injunctions would include firing, discriminating against, threatening, or otherwise engaging in unfair labor practices against an employee that significantly interfere with, restrain or coerce employees participating in the union organizing process. Investigations into unfair labor practices would take precedence over all of other cases in the office where the complaint was filed or referred.
H.R.800 also increases the penalties for unfair labor practices. While backpay is currently the principal remedy available to a worker whose rights are violated, the Act would provide for treble damages (i.e., backpay, plus liquidated damages two times that amount).
If an employer is found to have willfully or repeatedly engaged in unfair labor practices, the NLRB would be permitted to impose a civil penalty of no more than $20,000 for each violation. In determining the penalty, the NLRB would have to consider the gravity of the offenses and/or the impact on the victim(s) and/or the public interest.
Under existing the law, the NLRB may also order the employer to stop engaging in the unfair labor practice.
The Employee Free Choice Act of 2007 (H.R.800/S.1041) was introduced in the House of Representatives on Feburary 5, 2007 by Representative George Miller, with 230 original co-sponsors, and in the Senate on March 29, 2007 by Senator Edward Kennedy, with 46 original co-sponsors.
The House Subcommittee on Health, Employment, Labor, and Pensions held a hearing on the bill entitled, Strengthening America’s Middle Class Through the Employee Free Choice Act,on February 8. The Senate Committee on Health, Education, Labor, and Pensions (HELP) held its hearing on March 27, entitled, The Employee Free Choice Act: Restoring Economic Opportunity for Working Families.
On February 16, the House Committee on Education and Labor reported H.R.800, as amended, on a 26-19 vote, and the full House passed the legislation on March 1, on a 241-185 vote. The following day, the measure was placed on the Senate Legislative Calendar. On June 19, Majority Leader Reid filed a cloture motion to proceed to H.R.800. The DPC will continue to provide updated procedural information on this bill.
Three amendments were offered by Republicans during the House debate on H.R.800. Each of these amendments failed. H.A. 21 would have prohibited anything in the bill from requiring an employer to hire a person who is seeking employment for the purposes of union organizing. H.A. 22 would have required the NLRB to establish a process and model notice by which an employee can place him/herself on a list to avoid union solicitation. H.A. 23 would have substituted the bill’s text with that of H.R.866, the Secret Ballot Protection Act, which would require a secret ballot election for union certification.
The DPC will provide information on amendments, if any, when it becomes available.
Statement of Administration Policy
On June 20, the Bush Administration issued a strong Statement of Administration Policy in opposition to H.R.800, and the President has promised to veto the bill if passed.
Jon O. Shimabukuro, “The Employee Free Choice Act,” February 23, 2007, Order Code
Gerald Mayer, “Labor Union Recognition Procedures: Use of Secret Ballots and Card Checks,” Order Code RL32930.
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