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Commentary: Legislators soften labor law

John Hickey
Dolan Media Newswires

Portland, OR – A group of senators reportedly has agreed to eliminate the card-check provision of the Employee Free Choice Act.

The compromise is a result of Arlen Specter, D-Pa., a former co-sponsor, and Blanche Lincoln, D-Ark., among other Democrats, announcing their opposition to the EFCA. Without their support, it is unlikely the EFCA could overcome a filibuster that would block the bill.

Supporters hope that without card check the EFCA will draw less opposition. However, many business groups already have shifted lobbying efforts to the other provisions of the bill.

Under the original EFCA, if a majority of bargaining-unit employees signed authorization cards and the National Labor Relations Board validated the cards – called a card check — the union would be certified as the employees’ representative without an election. Opponents argued card check was unfair because it would cause unions to conduct authorization-card campaigns in secret and because employers and employees opposed to unionization would not have opportunities to voice their opinions.

The compromise eliminates card check, but would require accelerated secret-ballot elections and provide unions with greater access to employer property. Supporters say speedy elections are important because union support usually declines during any election campaign, and there would be less time for employers to influence their employees to vote against the union.

Currently, in negotiating a first collective bargaining agreement after a union becomes the employees’ representative, employers must bargain with a union in good faith. The parties are not required to reach an agreement, and one may not be imposed by the union, the employer, the NLRB, arbitrators or anyone else.

Under the EFCA, if a collective bargaining agreement is not reached in 90 days, either party may submit the dispute to mediation. If mediation does not result in agreement in 30 days, the dispute would be submitted to arbitration.

Currently, if an employer commits an unfair labor practice, such as firing or suspending employees thought to be union supporters, the NLRB may seek a court order against the employer and may award back pay to affected employees.

The EFCA requires the NLRB to seek a court order and award any affected employee back pay and twice that amount as liquidated damages. Any employer found to have willfully or repeatedly committed any unfair labor practice also would be subject to a $20,000 civil penalty. The penalties for unfair labor practices committed by unions do not change under the EFCA.

Congress is expected to pass some form of the EFCA this year, so nonunion employers should start planning for change.

John J. Hickey is a professional civil engineer and attorney at Jordan Schrader Ramis’ Dirt Law practice group.

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