On March 10, 2009, the House of Representatives introduced HR 1409, commonly referred to as the Employee Free Choice Act of 2009 (EFCA). This bill has also been referred to as the “check card” act. As proposed, this bill would simplify the procedure for union organization with the National Labor Relations Board (NLRB). This bill will have far reaching implications on the management of transportation companies. It will certainly affect the company’s cost structure and its decision to hire owner/operators, which raise another set of legal issues. Moreover, if approved, the legal implications of the legislation should be addressed with legal counsel in order to avoid running afoul of its provisions and subjecting the transportation company to significant fees resulting from violations.
With the proposed amendment, employees can certify a union when a petition is filed by an employee, group of employees, or any individual or labor organization acting on behalf of a majority of employees, i.e. 50% or more, for the purposes of collective bargaining with the employer. The NLRB must find that a majority of the employees signed valid authorizations selecting the representative or labor organization for collective bargaining. HR 1409 does not require a secret ballot election on the issue of unionization as long as a majority of the authorizations are signed by the employees. Ten days after the employer receives a written request for collective bargaining from a labor organization that has been certified, the employer and the labor organization must begin the collective bargaining process. The parties then have 90 days to consummate a collective bargaining agreement; otherwise, the matter is referred to the Federal Mediation and Conciliation Service (FMCS) for mediation. If no accord can be reached by the FMCS, the dispute is then referred to arbitration, which will be binding upon the parties for two years, unless amended in writing by the parties.
Currently, organized labor only needs 30% of the employees to sign valid authorizations, however, a secret ballot vote on the issue of unionization before the NLRB is required. Additionally, the legislation would increase the civil penalties for employers that violate employees’ rights during the organization process, including wrongful termination of organizers. Notably, employers can be fined up to $20,000 per violation for such conduct and subjected to injunctions that prohibit such conduct.
Naturally, there is a great divide between employer and employees on the efficacy of the EFCA. Organized labor has argued that it is necessary to protect the employees’ rights. On the other side, employers argue that the EFCA will allow unions to utilize coercive tactics that destroy American businesses. Regardless of your perspective, there are far-reaching implications for all industries, including the trucking industry. If passed, the legislation will allow employees, namely truck drivers, to organize with little to no opposition from the employer. The additional expenses from unionization and the probability of higher wages are all factors that must be considered when evaluating your business plan and budget.
An alternative measure that may allow a trucking company to avoid such a situation, if the bill were passed by the House and Senate, would be to utilize owner/operators, as opposed to making the drivers your employees. However, there are a host of issues, namely liability, that arise out of the independent contractor agreements that are utilized to memorialize these relationships between trucking companies and independent contractors. Therefore, we recommend that anyone faced with these legal issues contact an attorney to explore options and determine the most cost-effective way of addressing this legislation.
