Updating Issues - Unions
Feb 15, 2012 - NEWS
Unions in the United States has become a central issue with the effort in Wisconsin to remove collective bargaining for government employees and President Obama's involvement with the SEIU and UAW. Typically, whether or not a company's workforce wants to unionize is not a matter of federal lawmaking. However, starting after the Democrats took the majority in the House and Senate in 2006, they began to push the Employee Free Choice Act (EFCA).
Current law in the US asserts that once at least 30% of a company's work force has signed a card certifying their desire to form a union, a secret ballot election must be held. The employer can still request that secret election even if a majority of employees sign cards signifying their intent to organize with a union. The EFCA ends that provision so that if 50% or more sign cards, a union can be formed. This has led to Republicans referring to the legislation as "card check" in that union bosses could check the cards of workers and intimidate them into signing it.
After a union is certified, the EFCA allows the union to require the company to begin negotiations within 10 days and allows either side to take the dispute to the Federal Mediation and Conciliation Service after 90 days. This measure was in response to data that showed that 44% of newly formed unions never sign a first contract. The employer delays for one year and then calls for a new election in which the union is defeated.
Finally, the EFCA would make the National Labor Relations Board seek injunctions against employers who discriminate against employees who attempt to organize a union.
In response to this action, Republicans have introduced the Secret Ballot Protection Act (APBA). This legislation would ensure that a secret ballot election would be required in each company before a union can be organized to represent that work force.
Both the EFCA and the SBPA have been introduced numerous times since 2006, but the only vote on either piece of legislation was the EFCA vote in 2007. That vote passed the House and garnered a majority in the Senate, but did not receive enough support to pass a cloture vote. Republicans have also introduced a National Right to Work Act, that has not been voted on in either chamber.
The National Right to Work law would pass national legislation which would mirror laws passed in 24 states. This law prevents a union from requiring union membership as a condition of employment.
In recent years, there has been a great deal of debate surrounding the ability of public workers to collectively bargain as unions. Historically, public unions were discouraged as the ability of the state to pay is not limited by competition or income, and the temptation of politicians to make promises to garner votes is too high. Currently, there are 5 states that prohibit collective bargaining for public workers, and 11 in which it is allowed but not required.
Right to Work States
Numeorus states have passed laws that prevent a union from forcing an employee to be part of that union as a condition of employment. These states include Alabama, Arizona, Arkansas, Florida, Georgia, Guam, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming.
States with forced unions laws
Right to Work States
Collective Bargaining
Many states require that their public employees, such as teachers and other government employees, collectively bargain for their pay and benefits. Other states allow such collective bargaining, but do not require it or prevent it. In some states, it is illegal for government employees to collectively bargain for benefits and pay.
Collective Bargaining is Allowed for Government Employees
Collective Bargaining is Illegal for Government Employees
Collective Bargaining is Required for Government Employees
Components of the Employee Free Choice Act
The Employee Free Choice Act is legislation that the Democratic party has been attempting to enact since 2007. The legislation is geared at making it easier for groups to form unions and had three main components of the legislation.
- Current law states that once at least 30% of a company's work force has signed a card certifying their desire to form a union, a secret election must be held. The employer can still request that secret election even if a majority of employees sign cards signifying their intent to organize with a union. The EFCA ends that provision so that if 50% or more sign cards, a union can be formed.
- After a union is certified, the EFCA allows the union to require the company to begin negotiations within 10 days and allows either side to take the dispute to the Federal Mediation and Conciliation Service after 90 days. This measure was in response to data that showed that 44% of newly formed unions never sign a first contract. The employer delays for one year and then calls for a new election in which the union is defeated.
- The final component of the legislation would have made the National Labor Relations Board seek injunctions against employers who discriminate against employees who attempt to organize a union.
EFCA - Card Check
The first component of the EFCA is what causes opponents to refer to the legislation as "Card Check." Section 2 of the legislation states that if the National Labor Relations Board (NLRB) finds that a majority of employees have signed valid authorizations, then the NLRB will not call for a secret election but rather certify the union as the representing organization.
This section has led critics to refer to the law as "Card Check" as union representatives can approach each member of the work place individually and ask them if they wish to join a union. This would lead to a situation where pressure is placed on people to sign cards with union officials "checking" their signatures. The employees would have no chance to vote against a union in a secret election.
SEC. 2. STREAMLINING UNION CERTIFICATION.(a) IN GENERAL.—Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)) is amended by adding at the end the following:‘‘(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).
EFCA - Initial Collective Bargaining Agreements
The AFLCIO cites a study by John Paul Ferguson at MIT in claiming that 44% of newly formed unions fail to achieve their first negotiated contract with a company. This is because the employers delay negotiations and drag them out for at least one year, when another election is possible. In the next election, the demoralized workers often vote against the creation of a union.
Section 3 of the legislation deals with facilitating initial collective bargaining agreements. The law requires that companies and unions must meet within 10 days of the certification of the union and that if a new union and an employer are bargaining for their first contract and are unable to reach an agreement within 90 days, either party may request mediation by the Federal Mediation and Conciliation Service (FMCS). It further states that if after 30 days of mediation there is still no agreement, the dispute is referred to binding arbitration.
‘‘(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:‘‘(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section 9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.‘‘(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.‘‘(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. 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, unless amended during such period by written consent of the parties.’’.
EFCA - Enforcement
The final section of the legislation deals with punishing employers who retaliate against workers seeking to form unions. It prescribes back pay for the employee that was punished and civil penalties of $20,000 for each infringement.
SEC. 4. STRENGTHENING ENFORCEMENT.(a) INJUNCTIONS AGAINST UNFAIR LABOR PRACTICES DURING ORGANIZING DRIVES.—(1) IN GENERAL.—Section 10(l) of the National Labor Relations Act (29 U.S.C. 160(l)) is amended—(A) in the second sentence, by striking ‘‘If, after such’’ and inserting the following: ‘‘(2) If, after such’’; and (B) by striking the first sentence and inserting the following:‘‘(1) Whenever it is charged— ‘‘(A) that any employer— ‘‘(i) discharged or otherwise discriminated against an employee in violation of subsection (a)(3) of section 8;‘‘(ii) threatened to discharge or to otherwise discriminate against an employee in violation of subsection (a)(1) of section 8; or ‘‘(iii) engaged in any other unfair labor practice within the meaning of subsection (a)(1)that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed in section 7; while employees of that employer were seeking representation by a labor organization or during the period after a labor organization was recognized as a representative defined in section 9(a) until the first collective bargaining contract is entered into between the employer and the representative; or ‘‘(B) that any person has engaged in an unfair labor practice within the meaning of subparagraph (A), (B) or (C) of section 8(b)(4), section 8(e), or section 8(b)(7); the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred.’’.(2) CONFORMING AMENDMENT.—Section 10(m) of the National Labor Relations Act (29 U.S.C. 160(m)) is amended by inserting ‘‘under circumstances not subject to section 10(l)’’ after ‘‘section 8’’.(b) REMEDIES FOR VIOLATIONS.—(1) BACKPAY.—Section 10(c) of the National Labor Relations Act (29 U.S.C. 160(c)) is amended by striking ‘‘And provided further,’’ and inserting ‘‘Provided further, That if the Board finds that an employer has discriminated against an employee in violation of subsection (a)(3) of section 8 while employees of the employer were seeking representation by a labor organization, or during the period after a labor organization was recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract was entered into between the employer and the representative, the Board in such order shall award the employee back pay and, in addition, 2 times that amount as liquidated damages: Provided further,’’.(2) CIVIL PENALTIES.—Section 12 of the National Labor Relations Act (29 U.S.C. 162) is amended—
(A) by striking ‘‘Any’’ and inserting ‘‘(a) Any’’; and (B) by adding at the end the following:‘‘(b) Any employer who willfully or repeatedly commits any unfair labor practice within the meaning of subsections (a)(1) or (a)(3) of section 8 while employees of the employer are seeking representation by a labor organization or during the period after a labor organization has been recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract is entered into between the employer and the representative shall, in addition to any make-whole remedy ordered, be subject to a civil penalty of not to exceed $20,000 for each violation. In determining the amount of any penalty under this section, the Board shall consider the gravity of the unfair labor practice and the impact of the unfair labor practice on the charging party, on other persons seeking to exercise rights guaranteed by this Act, or on the public interest.’’.
Employee Free Choice Act of 2007
In 2007, Congress attempted to pass the Employee Free Choice Act. The legislation passed the House along mostly party lines, but failed to achieve the 60 votes necessary to overcome a filibuster in the Senate.