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The Employee Free Choice Act Lives On: A Regulatory End-Run Around Congress


The Employee Free Choice Act (“EFCA”), the bill that would have altered the way in which unions are allowed to organize workers, was introduced in both chambers of the United States Congress on March 10, 2009. Among other things, EFCA (sometimes also known as the “card check” bill) would have eliminated the time-honored right to the secret ballot in union elections, required employers to submit to binding arbitration if a first contract could not be reached (which would allow a third-party arbitrator to dictate to an employer the pay and benefits that must be provided to its employees and the work rules applicable to employees), and increased financial penalties and reporting obligations only for employers. In short, EFCA would have tilted the rules in favor of unions and reduced employees’ rights. As a result, and after a backlash from the voting public, Congress wisely decided to abandon its efforts to pass EFCA.

This legislative failure, however, has not stopped organized labor interest groups and the Obama administration from engaging in a concerted effort to make an end-run around Congress. Indeed, the administration (after lobbying efforts by organized labor) is now attempting to implement many of EFCA’s provisions through the regulatory and administrative rulemaking process.

The National Labor Relations Board (“NLRB”) has recently issued proposed rules that will unilaterally implement many of the EFCA provisions which would have decreased the fairness of union elections. For example, the proposed rules again seek to do away with the right to a secret ballot election by allowing the usage of e-mail and mail voting in union elections. The primary goal of this proposal is to require employees to cast their votes outside of the voting booth and without the strict supervision of government observers who are present to ensure fairness. Additionally, the proposed regulations would require union elections to take place in as few as ten days from the filing of a petition for election. Currently, the average election cycle is slightly more than 40 days from the filing of the election petition. During this period, employees have time to consider all of the information presented by both the employer and the union, and fully consider his or her position prior to casting a vote on unionization. But unions want employees to make emotionally-based “snap” decisions. By reducing the time for an election through administrative rulemaking, the unions and administration are seeking to curtail an employer’s ability to fully inform its employees about all of the issues associated with unionization.

The unions’ and administration’s desire to force employees to vote without a balanced presentation of information from both sides is made even more evident by proposed regulations that were issued, contemporaneously with the NLRB regulations, by the United States Department of Labor (“DOL”). Those regulations seek to inhibit an employer’s ability to seek advice from an attorney or consultant regarding a union election campaign. Indeed, the proposed DOL regulations would impose onerous and expensive reporting obligations upon attorneys or consultants who provide advice to employers during a union election campaign. Failure to follow these reporting requirements would result in federal criminal liability. The end result is that such regulations would have the effect of deterring an employer from engaging union election specialists to help with a union campaign and to advise the employer on how to best provide information to its employees about the real costs of unionization.

These are only a few examples of the ways in which the unions and the administration are trying to revive EFCA through the rulemaking process. NLRB rule changes have also imposed greater financial penalties only on employers (as EFCA sought to do) and recent NLRB decisions have demonstrated an intention to promote unionization. If this regulatory agenda is allowed to progress, the ultimate result will likely be an uptick in union organizing efforts, higher costs for employers, unfair union elections and the erosion of employee rights. It is crucial that employers submit comments opposing the proposed administrative rules and otherwise make it known to elected officials that EFCA should not be implemented on a patchwork basis through the regulatory and administrative rulemaking process. Comments regarding the proposed NLRB election regulations can be submitted until August 22, 2011 either electronically at (Regulatory Info. No.: 3142-AA08) or by mailing them to the NLRB’s Headquarters (Attn: Lester A. Heltzer, Executive Secretary) at 1099 14th Street N.W., Washington, D.C. 20570-0001. Comments regarding the proposed DOL campaign advice regulations can be electronically submitted until September 21, 2011 at (Regulatory Info. No.: 1245-AA03).

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©2016 Spilman Thomas & Battle, PLLC
Michael J. Basile / Responsible Attorney