Employee Free Choice Act
The Employee Free Choice Act ("EFCA"), despite not being law yet, is the most hyped piece of employment law legislation in decades. Rightfully so, because if it passes, it would be the most significant change in labor relations law since the passage of the National Labor Relations Act ("NLRA") in 1935.
As originally proposed and passed by the U.S. House of Representatives in 2007, the Employee Free Choice Act has three primary components: (1) card check recognition,(2) arbitration if a first contract is not reached after 120 days of bargaining and mediation, and (3) increased penalties for unfair labor practices committed while the union organizes or during first-contract bargaining.
Card Check Recognition
The card check recognition is the most controversial element of the EFCA. This provision of the EFCA abolishes the right of employers to request a "secret ballot" election of a union. Instead, unions need to only present a simple majority of signed authorization cards to be recognized as the bargaining agent of employees.
Currently, the NLRA does not require an employer to recognize a union unless and until the union receives majority support from employees in a secret ballot election. This election is conducted by the National Labor Relations Board ("NLRB") following a 42-day campaign period. The campaign period is commenced after a petition by the union and notification to the employer of the union's attempt to organize. During the campaign period, both the union and the employer can attempt to persuade employees of their positions on unionization. When the election occurs, the NLRB conducts it, to ensure that it is free and fair.
The bill's elimination of an employer's right to a secret ballot election is problematic for several reasons:
- An employer may not be aware that organizing activity is occurring, eliminating the possibility of educating employees and responding to union arguments;
- Employees lose their ability to vote anonymously, increasing the probability of coercion and retaliation when organizers know precisely which employees are supporting the union and which are not.
Arbitration of First Contracts
The bill allows either party to request mediation if agreement on an initial collective bargaining agreement is not reached within 90 days, and mandates binding arbitration if an agreement is not reached within 30 days of that request. An arbitration board's decision would be binding on the parties for two years unless they mutually agreed to an amendment.
This change to the law would severely limit employers' bargaining strategies and freedom to negotiate. The provision might lead unions to inflate their demands, knowing that an arbitration board might well split the difference between the employer's and the union's positions.
Increased Damages and Penalties for NLRA Violations
Finally, the EFCA creates, for the first time, substantial penalties for labor violations. These would apply during any period when unions are attempting to organize and during negotiations of a first contract. Specifically, the bill would enact the following:
- Increase the penalty for discharging or discriminating against an employee during the relevant period, to provide for back pay plus two times that amount as liquidated damages;
- Create civil penalties up to $20,000 for employers who willfully or repeatedly violate employees' rights during this period;
- Require the NLRB to seek a federal court injunction whenever it believes an employer has committed an unfair labor practice during this period, a possibility that has previously been left to the labor board's discretion.
What can Employers do?
First, let your voice be heard. The EFCA is not the law yet. Contact your senators and representatives and let them hear your perspective as a business owner. Congressional contact information is available here.
Additionally, employers wishing to remain non-union need to be proactive and prepare for this drastic change in labor relations law. Some suggested actions include:
- Conduct Employee Issue and Satisfaction Surveys - Dissatisfied employees and festering employment issues are fertile ground for union organizers. It is important to analyze the competitiveness of your wages and benefits and the presence of employee health and safety concerns.
- Ensure that Managers are Responsive to Employee's Issues - Employee feedback on issues and problems that arise is critical to ensure that management views are not insulated from employee's workplace realities. Employees' views on the fairness of problem resolutions can have a significant effect on the way employees respond to union organizing.
- Review Employment Policies - Certain policies, enacted before union organizing occurs, can be effective preventive measures or provide useful tools in the event organizing begins. Because implementing any policy in response to organizing is likely to be construed as an unfair labor practice, it is critical to review policies and revise or implement new policies before organizational activity is present. Policies employers should review, with the help of counsel, include visitation policies, distribution policies, dispute resolution policies, and no-solicitation policies.
- Communicate with Employees about Union Cards and the Company's Position on Unions and Free Choice - Because of the significance of card-signing under the EFCA, employers must educate employees on the effect of signing a union card and their rights as to whether to sign or not. It is also important for an employer to communicate lawful messages about its rights and positions on unionization.
Contact your Huddleston Bolen Labor & Employment Attorney for more information
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