While much of the labor-related legislative focus has been on the re-introduction of the Employee Free Choice Act (EFCA), another bill has slipped virtually unnoticed into the halls of Congress. The National Labor Relations Modernization Act (NLRMA) (H.R. 1355), introduced by Rep. Joe Sestak (D-Pa.), would amend the National Labor Relations Act (NLRA) to require employers to provide unions with equal access to employees prior to a representation election, increase employer penalties for unfair labor practices, and expedite the collective bargaining process. This bill resembles EFCA in many ways, but lacks the highly-contentious “card check” provision that obviates the need for a secret ballot election. While the supporters and opponents of EFCA continue to express a stiff resistance to any change in their relative positions – either EFCA as written or not at all – the NLRMA is the first attempt at striking a compromise position.

Certain provisions of the NLRMA mirror those of EFCA. Section 3 of this bill, “Strengthening Enforcement Against Intimidation of Workers,” lays out stiffer injunctive and civil penalties for employers that commit unfair labor practices (ULPs). These penalty provisions are lifted verbatim from EFCA’s Section 4, “Strengthening Enforcement.” In essence, employers that commit ULPs during the organizing period are required to award employees back pay in addition to twice that amount as liquidated damages. Moreover, an employer that willfully or repeatedly commits ULPs is subject to a $20,000 per violation penalty.

Section 2 of the NLRMA outlines a process for preventing excessive delays in the drafting of collective bargaining agreements. This section parallels the one contained in EFCA, laying out a strict timeline for bargaining the initial labor agreement with provisions for mediation and mandatory, binding arbitration; however, this bill is slightly less stringent and expands the timeline for bargaining and mediation before arbitration comes into play For instance, this provision applies to employers with at least 20 employees, a limitation not found in EFCA. Both bills require the union and employer to initiate collective bargaining within 10 days of receiving a written request. Under the new bill, if the parties have not reached an agreement after 120 days of bargaining, either party can request the appointment of an arbitration panel to assist in mediation. Under EFCA, the parties could request mediation after only 90 days of bargaining. In the new bill, if the parties are unsuccessful in reaching an agreement after 120 days from the date mediation is requested (versus 30 under EFCA), the parties would be forced into binding arbitration. Thus, under EFCA, arbitration could be required in as little as 120 days after bargaining is requested; whereas NLRMA provides up to 240 days before arbitration can be required. The arbitrator’s ruling on the terms of employment would be in effect for only 18 months under NLRMA, as opposed to EFCA’s 2-year contract.

A section in the NLRMA that does not appear in EFCA is “Equal Access to Labor Organizations Prior to Elections.” This section requires an employer – after an election date has been set – to notify the union of any campaign activity it intends to undertake, and allow the union equal access to present its side. Specifically, this new provision reads:
 

(1) Not later than 30 days after the Board shall have directed an election, the employer shall notify the representative designated by the employees under subsection (a) of any activities the employer intends to engage in to campaign in opposition to recognition of the representative, including any meetings with individual employees or groups of employees, any announcements to employees, any signs to be displayed at the place of employment, and any literature to be distributed to employees, and shall provide the representative with equal access to the place of employment to campaign in favor of recognition of the representative, including the opportunity to hold an equal number of meetings with individual employees or groups of employees, and an opportunity to make announcements, display signs, and distribute literature, under the same terms and conditions that the employer engages in such activities.

(2) As used in this subsection, the term `campaign' means any activity undertaken to persuade employees to vote for or against representation in an election directed by the Board, but shall not include any interference with, restraint or coercion of, or discrimination against employees in violation of paragraphs (1) through (3) of section 8(a).

Violations of this section would be considered an unfair labor practice subject to injunctive and monetary relief.

Given the intense focus on EFCA, it is not likely the National Labor Relations Modernization Act will receive serious consideration at this time. However, if a movement emerges in Washington to craft a middle-of-the-road compromise to EFCA, it is entirely possible that the National Labor Relations Modernization Act, or something similar, could be considered as a more palatable replacement bill.