Employee Free Choice Act More Than Just Card Check

Both unions and employers around the country are marshaling their forces for the upcoming war over the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560). Dubbed “card check” by employers, the EFCA would easily be the most significant amendment to the National Labor Relations Act since its enactment. Under the EFCA, the NLRB would be required to certify a union as the exclusive representative if it presented evidence (usually signed authorization cards) of majority support. In such a situation, there would be no secret ballot election.

However, the EFCA does a lot more than just authorize card check. The EFCA also imposes a system of mandatory interest arbitration for the first contract after certification. Specifically, the EFCA would amend Section 8 of the NLRA to require the following:

1. Within 10 days of a request from the newly certified exclusive representative, the parties must begin bargaining and “shall make every reasonable effort to conclude and sign a collective bargaining agreement.”

2. 90 days after bargaining begins, either party may request mediation with the Federal Mediation and Conciliation Service (FMCS).

3. The FMCS then has 30 days to mediate the dispute. If the FMCS is unable to resolve the dispute within 30 days after the request for mediation, the FMCS shall refer the dispute to an arbitration board (which will be established through regulations). The EFCA provides that the “arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years.”

Thus, the EFCA not only provides for a card check system, but virtually guarantees that any newly certified union will have a 2-year contract in place before expiration of the statutory one-year contract bar.

Stay tuned…. in the coming weeks I intend to blog more about the EFCA…

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