Major Changes Coming to the NLRA?–EFCA:Collective Bargaining by Arbitration

June 9, 2009

Mandated Collective Bargaining Agreements.

Current Law

Under the current law, once a union is certified by the National Labor Relations Board (the “Board”) as the collective bargaining representative of the employees, the parties must meet “at reasonable times” to negotiate “in good faith” in order to reach agreement on a collective bargaining agreement. However, neither party is required to “agree to a proposal” or [make any] concession.” There is no time limit for reaching an agreement, and often the first agreement takes a number of months to complete.

When the parties are unable to agree, either party may resort to use of economic weapons like a strike or a lockout. In addition, if the parties reach true impasse–a situation like stalemate in chess, in which no movement is realistically possible–the employer may unilaterally implement its last offer.

Although there are flaws in this scheme, and it might benefit form somewhat firmer parameters, most employers and unions do reach agreement within a reasonable period of time.

EFCA Changes

The EFCA would bring a dramatic change to the process. First, the statute would require that the employer begin bargaining within ten days following a request from the union, unless the parties agree to extend the time. (Currently there is no such time limit.) The parties are then required to “meet and commence to bargain collectively” and “make every reasonable effort to conclude and sign a collective bargaining agreement.”

If the parties do not reach agreement within 90 days (or a longer time agreed to by the parties), either the union or the employer may notify the Federal Mediation and Conciliation Service (FMCS) of a dispute and request mediation. The FMCS must then “promptly” communicate with the parties and use its” best efforts,” to bring them to agreement through mediation and conciliation.

If, however, the parties are unsuccessful in reaching agreement within 30 days following the first request for mediation (a period which may be extended by mutual agreement), the FMCS must refer the dispute to an arbitration board. These arbitration boards are to be created pursuant to regulations to be promulgated by the FMCS. The arbitration panel will then render a decision settling the dispute and the decision will be binding upon the parties for a period of two years, unless amended during such period by written consent of the parties.

The Significance of the EFCA Changes

The EFCA would change the bargaining process for first contracts significantly. First, the statute imposes an unrealistically short time limit on the parties for negotiating a comprehensive collective bargaining agreement. An agreement can easily take six months or more, even when the parties are working diligently toward an agreement. Neither the union nor the employer can typically devote full time to the process. Wages, work rules, benefits, discipline and discharge, dispute resolution, seniority, promotions, and numerous other matters must be addressed and reduced to writing. Granted, the parties can agree to extend the time. However, it would be preferable to begin with a more reasonable period of time.

In contrast to the present rule where mediators need only be contacted when a work stoppage is in the offing, mediation is now imposed unless the parties can quickly craft an agreement. If mediation is not successful, a neutral third party–an arbitration board–will impose an agreement upon the parties. Although one may presume that the arbitration board will piece together an agreement from the parties’ proposals, as written the EFCA does not set out parameters for the arbitrators.

Unfortunately, there are employers who after being unionized do not bargain in good faith and they seek to undermine the process. In those circumstances, the proposed EFCA procedure or some variation on it makes sense. However, the proposed statute appears a bit too rigid for the more typical good faith negotiations.

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