EFCA Dead? Not So Fast!

By
January 21, 2011

With the passage of the Employee Free Choice Act (EFCA) almost guaranteed an impossibility as a result of recent national elections, one might conclude that labor unions didn’t get much bang for their buck for supporting the election of President Barack Obama in 2008. While EFCA may be dead, the underlying goals that prompted the introduction of that legislation live on in recent decisions, proposed rulemaking, and pronouncements emanating from the National Labor Relations Board (NLRB). Therefore, it is entirely possible that organized labor will get much of what it wanted and will finally get its payback. Several decisions have been issued by the NLRB that adversely affect employers in their efforts to combat union organizing. Moreover, every indication is that more pro-union decisions are on the way. The new board appears to be looking for any reason to overturn union elections won by employers. For example, they have issued decisions overturning elections for the following reasons:
 

A company election observer was too closely aligned to management;
An employer’s supervisors were too close to the voting area during voting;
An employer unlawfully restricted the wearing of pro-union t-shirts even though the employer had consistently enforced a uniform policy restricting the wearing of t-shirts supporting outside organizations.

 
In addition, one or more of the current members of the NLRB have indicated that in future cases they might consider the following: (1) narrowly construe the definition of who are supervisors, making it more difficult to have those individuals excluded from proposed bargaining units; (2) eliminate charitable exceptions from no-solicitations-no-distribution rules; (3) prohibit supervisors from joining discussions between employees and the merits of unionization; (4) prohibit restrictions on the use of e-mail for union organizing purposes; and (5) prohibit employers from keeping union organizers off of company-owned property.
In addition to the above, the NLRB has indicated that it wants to make additional changes through new administrative rules.
The following are recent actions taken by the NLRB which further indicates its intent to be more pro labor.
Voluntary Recognition of Unions.
In 2007, the National Labor Relations Board (NLRB) issued a decision that required employers who agree to voluntarily recognize a union based on signed authorization cards to notify the NLRB regional office so that a 45-day notice could be provided to employees to file a petition for a secret ballot election. Dana Corporation, 351 NLRB 434. In August of this year, the NLRB requested briefs in a case that will reconsider the 2007 Dana Corp. decision.
In a related matter, on December 6, 2010, the NLRB issued a decision that dismissed a complaint in another case involving Dana Corporation which alleged that the company and the United Auto Workers violated the National Labor Relations Act by entering into a Letter of Agreement (LOA) which set forth ground rules for both parties that would be applicable in any union organizing campaign. The rules included a company commitment to “neutrality” during union organizing, an agreement to provide employee names and addresses to the union, and to provide union access to company property upon union request.
In addition, unlike most agreements of this kind, the LOA established a framework for future collective bargaining agreements, including minimum classifications, flexible compensation, mandatory overtime, competitive health care costs, and a minimum four-year term. It also provided for interest arbitration on any issue not resolved in negotiations. In previous cases, the NLRB ruled that such agreements violated the National Labor Relations Act because they constituted unlawful assistance to a union.
More recently, on January 14, 2011, the NLRB advised the Attorneys General of Arizona, South Carolina, North Dakota, and Utah that recently approved state constitutional amendments in those states requiring union elections to be conducted by secret ballot conflict with federal labor law and, therefore, are preempted by the supremacy clause of the U.S. Constitution. The NLRB has informed those states that they are prepared to initiate lawsuits to overturn those recently enacted constitutional provisions.
 
Initiative for Increased Remedies for Serious Violations During Union Organizing Campaigns.
The acting NLRB General Counsel recently announced an initiative to systematically “seek appropriate remedies” in response to serious unfair labor practices committed by employers during the course of an initial union organizing campaign. Under current law, remedies have typically been limited to injunctive relief in serious cases, posting requirements notifying employees that the employer has committed unfair labor practices, and in cases involving discharges, reinstatement, and back pay. In a memorandum issued on December 20, 2010, the acting General Counsel stated that more aggressive remedies should be considered in cases involving serious unfair labor practices involving threats, solicitation of grievances, promises or grants of benefits, illegal interrogations, and surveillance which “have a serious impact on employer-free choice, as they inhibit employees from engaging in union activity and dry up channels of communication between employees.”
Additional remedies suggested by the acting General Counsel include:

Notice reading remedies which would require a responsible management official to read a notice stating that the employer had violated the National Labor Relations Act which would be read to assembled employees or, at the option of the employer, to have a Board agent read the notice in the presence of a responsible management official.
Where an employer unlawfully interferes with communications between employees allowing the union access to the employer’s bulletin boards and providing the union with the names and addresses of employees so as to “restore employee/union communication and assist the employees in hearing the union’s message without fear of retaliation.”
In cases where it is determined that an employer’s unfair labor practices during a union election campaign have had such a severe impact on union/employee communication that bulletin board access and providing the names and addresses of employees are insufficient to permit a fair election, the following remedies should be considered: granting the union access to nonwork areas during employee’s nonwork time; giving a union notice of, and equal time and facilities for the union to respond to, and any address comments made by the company regarding the issue of representation; and affording the union the right to deliver a speech to employees at an appropriate time prior to the election.

 
Proposed Rule Requiring Posting of National Labor Relations Board Rights.
On December 21, 2010, the NLRB submitted to the Federal Register a notice of proposed rulemaking which provides for a 60-day comment period. The new proposed rule would require employers to notify employees through a posting of their rights under the National Labor Relations Act. As justification for the proposed rule, the NLRB cited legal commentators who have suggested that American workers are “largely ignorant of their rights under the National Labor Relations Act and that this ignorance stands as an obstacle to effective exercising of rights under the Act.” The NLRB cited the following reasons for such a knowledge gap: (1) the fact that an overall majority of private sector employees are not represented by unions; (2) the fact that immigrants, who comprise an increasing proportion of the nation s work force, are unlikely to be familiar with their workplace rights; (3) the fact that several studies had suggested that high school students, many of whom are about to enter the work force, are uninformed about labor law and labor relations.
 
The NLRB further stated that the National Labor Relations Act is unique among major federal laws in not including an express statutory provision requiring employers to post notices at their workplaces.
If the proposed rule is adopted, it would require private sector employers to post notices of employee rights under the National Labor Relations Act. The proposed notice would contain a summary of employees rights under the National Labor Relations Act. In addition to requiring physical postings of paper notices, the proposed rule requires that notices be distributed electronically, such as by e-mail, posting on an intranet or internet site, and other electronic means, if the employer customarily communicates with its employees by such means. In addition, since according to the NLRB significant number of employees are not proficient in English, the employers would be required to provide the required electronic notice in the language of its employees.
For violations of the posting requirement, the NLRB is proposing the following sanctions: Tolling of the Statute of Limitations for filing unfair labor practice charges against employers that fail to post the notices and considering the knowing failure to post notices as evidence of unlawful motive in unfair labor practice cases. Employers may submit comments by mail, hand delivery, or at http://www.regulations.gov. In addition, the proposed rule and more information can be found on the nlrb Website.
Based upon the above developments, it is predictable that organized labor will make a renewed effort to organize employees. Therefore, nonunion companies must remain diligent in their efforts to make sure that their employees do not believe a union is necessary to protect their interests.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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