The Employee Free Choice Act (EFCA) – Will You Be Prepared?

By
November 11, 2008

Now that we know Barack Obama will be our next president, there is a very good chance that some version of the Employee Free Choice Act of 2007 will become law early next year. This legislation will radically change the way unions organize workers in the United States. Even more important is that the legislation would result in arbitrators mandating the terms of the initial collective bargaining agreement if employees organize under the law. Obama co-sponsored the legislation when it was introduced in the Senate in 2007 and has been a long time and vocal supporter.
The EFCA passed the House in 2007, but failed to make it through the Senate because supporters could not get the necessary sixty (60) votes to end debate. However, with the change in the composition of the U.S. Senate, the likelihood of this legislation being enacted in some form is very good.
Private sector unions, who have seen their membership decline from over 24% of American workers in 1970 to less than 10% currently, have pushed for this legislation to make union organizing easier by eliminating the secret ballot from union elections. It would also modify bargaining procedures drastically and impose more punitive sanctions on employers who are found in violation of the National Labor Relations Act.
The key provisions of the legislation as currently drafted include the following:

Requires that when a majority of employees have signed union authorization cards, the union will be certified by the NLRB without a secret ballot election.
After certification of the union, employers would be required to commence negotiations within ten (10) days.
Provide that if an employer and a newly formed union are unable to bargain a first contract within ninety (90) days, either party can request mediation by the Federal Mediation and Conciliation Service. If no agreement is reached after thirty (30) days of mediation, the dispute is then referred to binding arbitration.
Create civil penalties of up to $20,000 per violation against companies found to have willfully and repeatedly violated employees’ rights during an organizing campaign or first contract negotiations.
Increases to three (3) times back pay the amount the company is required to pay when an employee is discharged or discriminated against during an organizing campaign or first contract negotiations.

For employers who want to maintain their ability to work directly with employee groups who are not currently organized, they should take the following actions:

Conduct a union vulnerability audit;
Train managers and supervisors on:
How to manage employee to promote a union-free workplace;
Do’s and don’ts of what they can and cannot say and do as it relates to promoting a union-free environment; and
The disadvantages of a unionized workplace.

Institute an educational program so that employees understand the effects/consequences of signing union authorization cards and the company s position on unionization.

Ruder Ware Labor and Employment attorneys have represented employers for over thirty (30) years in union-related matters and are prepared to assist in developing an appropriate proactive action plan for employers who want to be prepared to deal with the new challenges that will be created with the enactment of this legislation. 
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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