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The National Labor Relations Act: Competing Proposals to Amend the Act

As of March 25, 2009, there have been at least six different proposals put forth either in legislation or to the public for one single purpose: amending the National Labor Relations Act (“the Act”) specifically as it relates to labor unions organizing employees. The procedures of the National Labor Relations Board (“the Board”) are the subject of some of the proposals. Many labor unions perceive Board procedures to be too slow and too weak to be effective. While the Employee Free Choice Act is certainly the most highly publicized of these proposals, there are several that seek to make it easier for labor unions to organize employees. What follows is a summary of each of these proposals.

A. Labor Relations First Contract Negotiations Act of 2009 – H.R. 243. Introduced January 9, 2009 in the House of Representatives by Congressman Raymond Green – D-TX. There were no co-sponsors. No Senate version has been introduced.

This bill would amend the National Labor Relations Act to require the arbitration of initial contract negotiation disputes. Specifically, where an employer and labor union have not reached a collective bargaining agreement in 60 days after the Board has certified the union as the exclusive representative of the bargaining unit employees, the parties would be required to engage in mediation to resolve the disagreements. If the parties do not reach an agreement within 30 days of selecting a mediator, the issue may be transferred at the request of either party to the Federal Mediation and Conciliation Service for binding arbitration.

B. Secret Ballot Protection Act of 2009 – H.R. 1176. Introduced February 25, 2009 in the House of Representatives by Congressman Joe Kline – R-MN. There were 107 co-sponsors. This bill has a Senate version – S. 478 – Introduced by Senator Jim DeMint – R-SC with 19 co-sponsors. The bills are identical.

These bills require that no labor union shall be deemed a certified representative of employees without a secret ballot election conducted by the NLRB. They also provide that it shall be an unfair labor practice for any employer to recognize a labor union that has not been selected by a majority of employees in a secret ballot election. Similarly, they would also provide that it would be an unfair labor practice for a labor union to try to force an employer into recognizing the labor union without a secret ballot election. This bill would not only blunt a major provision of the proposed Employee Free Choice Act but removes entirely the voluntary recognition option available under the current language of the Act.

C. National Labor Relations Modernization Act of 2009 – H.R. 1355. Introduced March 5, 2009 in the House of Representatives by Congressman Joe Sestak – D-PA. There were no co-sponsors and no Senate version has been introduced.

This bill would require that bargaining for a new contract begin 10 days after a labor union is certified by the NLRB as the representative of the employees. If the parties cannot reach an agreement within 120 days, either party may petition the Federal Mediation and Conciliation Services for the appointment of an arbitration panel. The panel will be required first to use mediation to try to get the parties to reach an agreement. If the panel is unable to bring the parties to an agreement in an additional 120 days, then the panel shall begin arbitration and shall reach a decision within 30 days. A panel decision would be effective for 18 months.

This bill also provides that a firing of an employee during an organizing attempt in violation of the Act shall warrant a penalty of triple back pay. Repeated violations of the Act would trigger a civil penalty of up to $20,000 per occurrence. Finally, the bill would require employers to provide equal workplace access to labor unions seeking to organize employees. Specifically, the bill would require an employer to notify a union seeking to organize the employees whether it intends to engage in an opposition campaign and, if so, what specific opposition it plans to use, e.g., signs, meetings, announcements or literature. The employer then is required to give the labor union equal access to the place of employment for similar campaign conduct.

D. Employee Free Choice Act of 2009 – HR 1409. This was proposed by Congressman George Miller, D-CA on March 10, 2009. There were 224 cosponsors. A companion bill, S-560 was introduced that same day in the U.S. Senate by Senator Edward Kennedy, D-MA, with 39 co-sponsors.

This is the most widely discussed bill for amending the National Labor Relations Act. One key provision directs the NLRB to certify – without a secret ballot election – a labor union as a representative of a group of employees if a majority of those employees have signed valid authorizations designating the union as their representative.

The bill also requires employers to begin bargaining within 10 days of receiving a request for collective bargaining from a newly certified labor organization. If after 90 days of bargaining the parties have failed to reach an agreement, either party may request mediation by the Federal Mediation and Conciliation Service. If mediation is unsuccessful after an additional 30 days, an arbitration panel will render a decision which shall be binding for two years.

The bill also provides stronger penalties for violations of the Act during initial organizing or during negotiations for a first contract by expanding the penalties for a terminated employee to triple back pay. The bill adds a penalty for a willful violation of the Act not to exceed $20,000 per violation.

E. Proposal of the Committee for a Level Playing Field. This group led by the employers Costco, Starbucks and Whole Foods proposed a so-called “Third Way” on March 22, 2009. The Committee’s purpose is to “offer a new solution wholly distinct from the recently-introduced and controversial ‘card check’ bill, the Employee Free Choice Act.” The Committee’s proposal guarantees the rights of secret ballots under all circumstances, both certification and decertification. The proposal provides for a fixed time period for secret ballot elections. The proposal also would permit each side to make presentations to employees at a neutral location during non-working hours concerning the issue of whether to form a union. The proposal also provides for expedited enforcement and stiffer penalties for violations of labor law by management. Finally, the proposal would prevent mandatory arbitration, but allow stricter penalties and expedited enforcement of violations of good faith bargaining rules.  

F. Proposal of Senator Arlen Specter, R-PA. Senator Specter announced on the floor of the U.S. Senate on March 24, 2009 that he would vote against permitting the Employee Free Choice Act to come up for a vote. This is a change from his vote on the same issue in 2007. He believes he represents the critical 60th vote needed by the Democrats to permit a vote on the bill.

Sen. Specter also released a laundry list of provisions that would make organizing easier and that he would likely support if included in an amended or alternative bill.

Sen. Specter’s list includes requiring elections within 21 days of the filing of a petition by a labor union, with the right of the NLRB to extend that period by up to 14 days if there are exceptional legal or factual issues. The Specter list also includes unfair labor practice charges for employers or union officials that visit homes of employees without prior consent related to the representational campaign. In addition, a captive audience speech by an employer would be an unfair labor practice unless the union is given equal time under identical circumstances. The list includes an additional unfair labor practice charge for any campaign activity by labor unions or employers in the 24 hours prior to an election. Also included are triple back pay for employees unlawfully fired, and a $20,000 civil penalty for willful or repeated unfair labor practices during union campaigns. Another provision on the list requires parties to begin negotiations within 21 days after a union is certified, and permits a party to seek mediation with the Federal Mediation and Conciliation Service after 120 days of negotiations. Costs and attorneys’ fees could be assessed against a party not negotiating in good faith. Finally, the list includes some possible procedural changes to the processing of cases before the NLRB.

The chart below summarizes the provisions of these six proposals. The Spencer Fane traditional labor lawyers will continue to monitor these legislative developments. If you have questions related to this area, please contact any of the firm’s traditional labor attorneys.

COMPETING PROPOSALS TO AMEND THE NATIONAL LABOR RELATIONS ACT

Labor Relations First Contract Negotiations Act of 2009 Secret Ballot Protection Act of 2009 National Labor Relations Modernization Act of 2009 Employee Free Choice Act of 2009 Proposal of the Committee for a Level Playing Field Proposal of Senator Arlen Specter
Bill Number H. R. 243, no Senate version H. R. 1176, S. 478 H. R. 1355, no Senate version H. R. 1409, S. 560
Introduced 01/09/2009 02/25/2009 03/05/2009 03/10/2009 03/22/2009 03/24/2009
Status Referred to the House Committee on Education and Labor; Referred to House Sub Committee on Health Employment Labor and Pensions House Bill was referred to the House Committee on Education and Labor.
Senate Bill was placed on the Senate Legislative Calendar.
Referred to the House Committee on Education and Labor House Bill was referred to the House Committee on Education and Labor.
Senate Bill was referred to the Senate Committee on Health, Education, Labor and Pension,
Not formally introduced in legislation. Not formally introduced in legislation.
Board Certification No provision No labor union can be certified without a secret ballot election conducted by the NLRB No provision Board certification without a secret ballot election if a majority of the employees have given valid authorizations designating the union as their representative (card check) Guarantees the right to a secret ballot election under all circumstances (both certification and decertification) and provides for a fixed period for secret ballot elections Secret ballot elections within 21 days of the filing of a petition by a labor union, which can be extended by up to 14 days by the NLRB if exceptional legal or factual issues
Campaign Process No provision No provision Employer must notify the organizing union if it plans to engage in an campaign, what specific tactics it plans (signs, meetings, announcements, literature), and then is required to give union equal access to the place of employment for meetings, displaying signs and similar conduct No provision Grant equal access to employees during non-working hours during the campaign period, permitting each side to make presentations to employees at a neutral location concerning the issue of whether to form a union Unfair labor practice for employers or union to visit homes of employees without prior authorization; Employer captive audience speech is an unfair labor practice unless the union has equal time under identical circumstances; no campaign activity by either side allowed in the 24 hours preceding the election
Bargaining Obligations No provision No provision Bargaining for a new contract must begin within 10 days after the union is certified Employers must begin bargaining within 10 days of receiving a request for collective bargaining from a newly certified labor organization No provision Negotiations must begin within 21 days after a union is certified; costs and attorneys fees can be assessed against a party who fails to negotiate in good faith
Mediation Where the employer and union have not reached a collective bargaining agreement within 60 days after certification, the parties are required to engage in mediation No provision If no contract in 120 days, either party may petition the Fed. Mediation and Conciliation Service for the appointment of an arbitration panel; the panel will be required to use mediation to try to get the parties to reach an agreement If after 90 days of bargaining the parties have failed to reach an agreement, a party may request mediation by the Federal Mediation and Conciliation Service No provision If after 120 days of bargaining the parties have failed to reach an agreement, a party may request mediation by the Federal Mediation and Conciliation Service
Arbitration If no contract in 30 days of selecting a mediator, a party may seek binding arbitration through the Federal Mediation and Conciliation Service. No provision If no contract in an additional 120 days, the panel shall begin arbitration and shall reach a decision within 30 days; a panel decision is effective for 18 months. If mediation is unsuccessful after an additional 30 days, the arbitration panel will render a decision that will be binding for 2 years. The proposal prevents mandatory arbitration No provision relating to arbitration
Unfair Labor Practices No provision Unfair labor practice for any employer to recognize a labor union that has not been selected by a majority of employees in a secret ballot election; also an unfair labor practice for a labor union to try to force an employer into recognizing the union without a secret ballot election No provision No provision No provision Unfair labor practice for employees or union officials to visit homes of employees without prior consent in conjunction with a representational campaign; a captive audience speech by an employer is an unfair labor practice unless the union is provided equal time under identical circumstances; any campaign activity by labor unions or employers during the 24 hour period preceding an election constitutes an unfair labor practice
Remedies No provision No provision A violation of the Act during an organizing attempt which results in the firing of an employee shall warrant a penalty of triple back pay for each terminated employee; repeated violations of the Act warrant a civil penalty of up to $20,000 per occurrence A violation of the Act during initial organizing or during negotiations for a first contract that results in the termination of an employee warrants a penalty of triple back pay for each terminated employee; willful violations of the Act warrant a penalty not to exceed $20,000 per violation Allows stricter penalties and expedited enforcement of violating good faith bargaining rules Triple back pay remedy for employees who are unlawfully terminated, and a $20,000 civil penalty for willful or repeated unfair labor practices during union campaigns