Alternatives to the proposed legislation known as the Employee Free Choice Act (EFCA) (H.R. 1409; S.560) have started to emerge as legislators seek to reach a compromise between labor and management interests. Congressman Joe Sestak (D-Pa.) recently introduced the National Labor Relations Modernization Act (NLRMA) (H.R. 1355). Unlike EFCA, the NLRMA would apply only to employers having 20 or more employees and would not eliminate the requirement for secret ballot union elections, thereby avoiding EFCA’s controversial card check provisions.

Similar to EFCA, the NLRMA sets time limits during which an employer and the union must reach a first collective bargaining agreement and mandates interest arbitration. The NLRMA periods are longer than those under EFCA. EFCA provides a 90-day initial period, whereas the NLRMA gives the parties 120 days to reach an initial agreement. If unsuccessful after 120 days, the parties may contact the Federal Mediation and Conciliation Service (FMCS) and request the appointment of an arbitration panel.

The arbitration panel would undertake a mediation process in an attempt to bring the parties to an agreement within 120 days, (unlike EFCA's shorter 30 day time-frame). If mediation efforts are unsuccessful, the NLRMA provides that the FMCS-appointed panel would then begin to arbitrate the dispute in accordance with regulations prescribed by the FMCS. The arbitration panel would have only 30 days to render a decision, which would be binding on the parties for 18 months, compared to two years under EFCA.

The NLRMA contains the same penalty provisions as EFCA and requires that the National Labor Relations Board (NLRB) seek a federal court injunction against an employer for unfair labor practices. It also provides damages of back pay, plus two times that amount as liquidated damages, to an employee who is discharged or discriminated against during the period when employees are attempting to organize a union or negotiate a first contract with the employer. The NLRMA provides civil fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated employees’ rights.

Most importantly, the final sections of NLRMA add significant new provisions that would give equal access to employees for labor organizations before union elections. These NLRMA provisions require an employer to notify the designated employee representative "of any activities the employer intends to engage in to campaign in opposition to recognition of the representative." The term "campaign" is defined broadly as "any activity undertaken to persuade employees to vote for or against representation in an election directed by the Board." Activities specifically listed in the bill include:

  • the opportunity to have an equal number of meetings with employees;
  • making announcements to employees;
  • displaying signs; and,
  • distributing literature.

Failure to provide equal access would constitute an unfair labor practice.

The NLRMA's equal access provisions would have a major impact on an employer's ability to respond to a union election campaign. These sweeping provisions seemingly provide that any action an employer plans to take in response to a representation election must be communicated to the designated employee representative before the employer acts. Once an employer engages in activity in opposition to a union election campaign, the designated employee representative would have the opportunity to respond in kind.

Lawyers in Ballard Spahr's Labor, Employment and Immigration Group are ready to assist you with any questions regarding the proposed legislation and any preventive planning, including training and policy development.


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