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.


The Employee Free Choice Act

The Employee Free Choice Act (EFCA), which is highly likely to be adopted in some form by the current Congress, is the most sweeping revision of the National Labor Relations Act (the “Act”) since the Labor Management Relations Act (Taft Hartley) of 1947. There were major amendments in 1959 and 1974, but none of those reached the very core of the Act–union organizing–in the way the EFCA does.

The proposed statute, which has now been introduced into both the House (HR 1409) and the Senate (S 560) with numerous sponsors, would make three major changes to the Act. In order to provide some background for readers not familiar with the Act, I will divde the discussion into three parts.

Part 1. Union Organizing By Card Check

Under current law, if a union wants to organize the employees of an employer, it distributes union authorization cards to the members of the proposed bargaining unit. These cards authorize the union to act as the exclusive bargaining representative of the employees. If the union presents cards from over 50% of the members of the proposed bargaining unit, the employer may recognize the union voluntarily. However, in almost every instance, the employer will insist that the union file a petition for an election to be administered by the National Labor Relations Board (NLRB). Unions can simply file petitions on their own with cards from merely 30% of the members, but they rarely do so as statistically they are unlikely to win an election unless they have 50% to 75% of the employees supporting the union at the time of the filing of the petition.

Once the petition is filed the appropriate bargaining unit is determined (by the NLRB when the parties do not agree or when the proposed unit is not “appropriate”) and an election is scheduled. Then the union and the employer launch into intensive campaigns. As a broad generalization (with myriad exceptions), employers have the upper hand in such campaigns as they have greater resources. There are consulting firms, for example, that specialize in helping companies defeat a union organizing drive. In addition, employers can have captive audience speeches on work time, whereas unions generally are limited to offsite meetings.

If the union receives a majority of the votes cast in the secret ballot election on election day, it wins. If not, the employer wins and the employer can be assured that there will be no more organizing attempts by the defeated union at least for another year.

If the union does prevail, the parties must negotiate “in good faith” to reach agreement on a contract. Although most parties do so successfully, some employers will seek to drag negotiations out long enough that support for the union wanes.

The Significance of the EFCA

The EFCA as proposed introduces a radical change. Under the legislation, once a union presents the NLRB with cards signed by a majority of the employees (50% plus 1) and the Board is satisfied that the cards are legitimate, then the Board must certify the union as the collective bargaining representative without an election. The EFCA is unlikely to be adopted in its current form, as there are many vocal opponents. However, it is highly likely to pass in some form. Whatever the final bill looks like, unions will have a much easier time of organizing employees.

Employers are not always aware of union organizing campaigns until they are well underway. Consequently, if a union is able to collect signed authorization cards from over 50% of the members of the proposed bargaining unit without the employer’s being aware of the campaign, an employer could be shocked to suddenly find a union on its doorstep.

There are rationale arguments both for and against this change. The one thing that is certain, however, is that the EFCA is sure to change the landscape for employers and unions for years to come.


In the current Congress numerous employee-friendly bills have been introduced. Among the most significant and most likely to be adopted are changes to the National Labor Relations Act–the first amendments in over 30 years and perhaps the most significant amendments since the Act was first adopted in 1935, or at least since the Taft-Hartley amendments in 1947. This post begins a series explaining and analyzing the proposed changes to the Act.


Senators Dodd, Durbin, and Kennedy recently introduced the “Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers Act” (RESPECT) (S. 969). The proposed statute would modify the definition of a “supervisor” in the National Labor Relations Act (NLRA). Congressman Rob Andrews and Congresswoman Rosa DeLauro have introduced companion legislation in the House of Representatives.

The NLRA defines a supervisor as an:

individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

The amendment would add “and for a majority of the individual’s worktime” after “interest of the employer” and strike the words “assign” and “responsibility to direct them.”  The amended section of the  statute would read, therefore:

any individual having authority, in the interest of the employer and for a majority of the individual’s worktime, to hire, transfer, suspend, lay off, recall, promote, discharge, reward, or discipline other employees. . .

What Is the Significance of the RESPECT Act?

On its face, this looks like a modest change, but it could  have far-reaching impact, particularly in health care.   There has long been tension as to who is and who is not a supervisor. Supervisors are not allowed to organize into unions. When a union seeks to organize an employer for the first time, the bargaining unit defined by the parties must exclude supervisors. Consequently, employers generally want to treat as many employees as possible as supervisors, while the union wants to minimize the number of persons identified as supervisors in order to limit the size  of the bargaining unit.

There has long been tension between the more conservative and the more liberal members of the National Labor Relations Board (NLRB).  When I worked at the Board the staff often joked that for some Board members “everyone was a supervisor.”  

The issue  came to a head in  the broad context of charge nurses. Generally in a hospital each unit has at least one charge nurse.  The nurse may assign others duties and oversee the unit for his or her shift.  However, charge nurses usually do not have the power to hire and fire nor perform other managerial functions.  In 1996, the Board held in Kentucky River Community Care, Inc,; 323 NLRB No. 209 (1997),  that  six  registered nurses in a 110 member bargaining unit  were not supervisors because the nurses  did not use “independent judgment” when they exercised “ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards.”  

The Supreme Court ultimately rejected the Board’s reasoning, however in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001).   In 2006, the Board decided Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), finding charge nurses supervisors and devising a new test for measuring who is and who is not a supervisor, consisten with the Supreme Court’s pronouncement in Kentucky River. The result is employees who perform even limited supervisory duties part of the time may be viewed as supervisors and prohibited from joining labor organizations.  By requiring that an employee can only be deemed a supervisor under the NLRA if he or she acts as a supervisor the majority of  his or her worktime and by eliminating the words “assign” and “responsibility to direct them,” the amendment would allow most charge nurses, and  perhaps many other part-time supervisors, to be represented by a union.

Needless to say, unions are lobbying hard for the bill, while employers are generally opposed to it.

In January 2008, President Bush signed the National Defense Authorization Act (NDAA), which, among other things, provided for FMLA (Family and Medical Leave Act) leave specifically for military families. New regulations from the Department of Labor implement these provisions and in additino make several significant modifications in the application of the FMLA. These new rules become effective January 16, 2009. Employers should prepare now to apply the new rules.

The following are a few of the highlights of the new provisions:

New Military Caregiver Leave. Eligible employees may now take up to 26 weeks of FMLA leave to care for a member of the Armed Forces (including members of the National Guard and Reserves as well as Regular Armed Forces) who has a serious injury or illness incurred “in the line of duty while on active duty” for which the military person is undergoing medical treatment, recuperation, or therapy. The leave is available to the spouse, child, parent or “next of kin” of the military personnel.

New “Qualifying Exigency Leave” for Some Military Families. In the event of certain defined “qualifying exigencies,” the spouse, child, or parent of a member of the National Guard or Reserves may take up to 12 weeks of leave, provided that the military member is on active duty, or has been notified of an impending call or order to active duty in support of a contingency operation. The qualifying exigencies include short notice deployment, certain child care and related activities, and rest and recuperation of the military member. (The rest and recuperation leave is limited to five days.)

Serious Health Condition. The meaning of “serious health condition” is clarified.

FMLA Notices. If you do not have an employee handbook or similar document distributed to all employees which explains FMLA leave to employees, you must give a general FMLA notice to each employee at the time of hiring that employee.

Designating FMLA Leave. Once you as an employer have sufficient information to determine that an employee’s leave is covered by the FM LA, you must notify the employee within 5 business days of his or her eligibility (this is an increase from the current 2 day requirement).

Scheduling Intermittent Leave. Employees who take intermittent leave for scheduled medical treatment, now have a statutory obligation to make a “reasonable effort” to schedule the leave so as not to unduly disrupt the employer’s business operation. Under the old regulations, employees were required only to “attempt” to schedule leave with the employer’s needs in mind.

The Family and Medical Leave Act, adopted in 1993, provides eligible employees who work for covered employers the right to take up to 12 weeks unpaid leave for  the birth of the employee’s child, the placement of a child with the employee for adoption or foster care; or the care of a son, daughter, spouse, or parent with a serious health condition.  The Act also allows the employee to take such leave for the employee’s own >health condition.  Some jurisdictions allow more than 12 weeks, e.g., Washington, DC mandates 16 weeks.

Although FMLA leave is a good concept and is now well known by HR Personnel everywhere, there are some elements of the Act that have long cried for clarity, e.g, a clearer defintion of serious health condition.

In January 2008, President Bush signed the National Defense Authorization Act, which, among other things, provided for FMLA leave specifically for military families.

In 2006, the Department of Labor  solicited public comments on experience with the FMLA.  In February 2008 the Department solicited comments on proposed changes to the regulations.  On November 17, 2008, new regulations were issued, to be effective January 16, 2009.  The new regulations address a number of concerns raised by those who daily apply the statute.  In addition, the regulations integrate the new provisions for military families.

The current global economic crisis leaves little doubt that the financial lives of people around the globe are inextricably intertwined.  With the continual growth and development of technology, instant communication, and virtual offices, events in one economy are soon felt in others.

Notwithstanding this modern economic reality, many American business persons know very little about the laws and business practices of their counterparts on the other side of the Atlantic.  Seeking to serve these needs, Global Capital Law Group is expanding to provide labor and employment services to its clients around the globe.

I have just returned from Paris, where we have formed an association with attorneys in Paris and Strasbourg, as well as associations with M&A constultants, EC lobbyists, and others. </p

In the United States, this is a time of major developments in labor and employment law.  In the days to come, on these pages we will post developments in the U.S. and around the world, to help our readers and clients to be informed of current issues in the workplace. </p