So I’m for the Employee Free Choice Act, in possible disagreement with some close comrades. In disagreement with other close comrades, I don’t think EFCA has a lot of radical potential for revolutionists. Anyhow, here’s what I’m unclear on: what does EFCA do or not do for employees exercising their right to concerted activity but not seeking to form a legally recognized organization which will be the exclusive bargaining agent under a collective bargaining agreement?

I got into some conversations lately where two friends asked me to say why I understand the EFCA as I do. That’s fair, and I honestly couldn’t fully remember, so I read back over the EFCA and the NLRA. Here’s my best attempt to say why I understand the act as I do.

When ULPs are committed “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 (…) 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.” (EFCA 4a2B)

The bit before the elipse says to me that this emphasizes ULPs committed during attempts to form a union over other ULPs including retaliation against people not attempting to unionize but who exercise sec 7 concerted activity rights. The bit after the elipse says that the latter type of case will get lower priority in the board for investigative purposes, as compared with ULPs in a unionization attempt.

“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” (EFCA 4b2B)

This mentions ULPs falling under section 8a3 of the NLRA. Sec 8a3 covers “discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” (http://www.nlrb.gov/about_us/overview/national_labor_relations_act.aspx.) Section 8a1 states that it shall be a ULP for an employer to “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7,” section 7 states among other things that “Employees shall have the right to self-organization (…) and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8a1 seems only to be mentioned in EFCA once, in the context of employees “seeking representation by a labor organization or during the period after a labor organization was recognized as a representative”.

Here’s what this boils down to I think. Say there are two highly similar workplaces with problems around health and safety, in one there’s a union drive happening and in the other there’s not. In both, employees repeatedly go in groups to their employer to raise health and safety concerns. In both, the employer fires the employees in retaliation. This is a violation of the sec 7 right to concerted activity. As I understand it, if EFCA passes the employees in the unionizing workplace could get triple back wages and the employer could be liable to a fine of up $20,000 (EFCA 4b2B)while the employees in the non-unionizing workplaces would not get able to get triple back wage or the fine against their employer.

All quotes via these URLs –

EFCA – http://thomas.loc.gov/cgi-bin/query/D?c110:1:./temp/~c110ZYGPvk::

NLRA – http://www.nlrb.gov/about_us/overview/national_labor_relations_act.aspx

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