Volume 7, Issue 9
October 22, 2008
The Employee Free Choice Act ("EFCA") has not been on many employers' "radar screen" until recently. Variations of this type of legislation have been proposed in Congress for years, only to die in one committee or another. However, with our current Democratically- controlled Congress and a promise by Senator Barack Obama to see this legislation pass if he is elected, there is a very real threat that this anti-employer legislation will become law in 2009. As such, employers must decide where they stand on this issue and make their voices heard, as well as prepare for the possibility of a huge change in labor relations.
Previously, most of the attention given to the EFCA has been focused on the provisions that would eliminate an employer's right to require a secret ballot election supervised by the National Labor Relations Board before having to recognize a union as the majority bargaining representative of its employees. Under EFCA, if an employer is presented with signed union authorization cards by a majority of its employees in a potential bargaining unit, the employer must recognize the union without the ability to require a secret ballot election. Rather than promote "employee free choice," the EFCA removes the employee's right to vote their conscience in the privacy of a secret ballot voting booth and gives them no realistic way to avoid union and co-worker coercion and pressure tactics to sign authorization cards.
But depriving employers and employees of the right to have a secret ballot election is just the beginning of this piece of legislation. When a union obtains authorization cards from a majority of your workers in an appropriate bargaining unit, the EFCA allows a company and a union only ninety days to negotiate a first-time labor agreement. If a contract is not reached, either party can demand mediation. If mediation does not result in a labor contract in thirty days, a contract will be imposedon you and the union by a third-party arbitrator in a process called "interest arbitration."
Some legal commentators believe that forcing such labor agreements on private employers may be unconstitutional. They predict that employers will increasingly resort to aggressive tactics such as lockouts to force a contract settlement with a union and avoid interest arbitration - tactics which disrupt business and create turmoil in the workplace. Regardless, if the EFCA is passed, many employers will most certainly find interest arbitration unavoidable.
If the EFCA becomes law, employers will need to become much more vigilant in their efforts to keep their workplaces union-free. The increased threat of unionization based on card-signings alone will put most employers in a constant state of union avoidance. In practical terms this means creating a "stop the card" training component for employee orientation, more intensive training of supervisors and managers from the lowest levels to the highest executives, ongoing employee education on the risks of unionization and card signing, and the development of a counter-unionization campaign that can be rolled out on very short notice.
Because the stakes could not be higher for employers, especially during these tough economic times, employers need to become intimately familiar with the EFCA and its status in Congress. Moreover, it is important that employers begin to prepare and plan for the possibility of the EFCA's enactment.
Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.