The Employee Free Choice Act (EFCA)

Shumaker Williams, P.C.

Legal Alert

The Employee Free Choice Act (EFCA)
What will it mean for your business?

The recent election of a Democratic President and Congress makes passage of a law entitled The Employee Free Choice Act, or the EFCA, virtually certain. This law will make it easier than ever before for unions to organize workers. If passed in its present form, employers who never thought they could be unionized, may arrive at the office to find their business has been unionized before they even realize their business was a target of organizers. For workers, it will mean they have no opportunity to "vote" in the traditional sense, and will never have an opportunity to hear both sides of the argument as to why they should, or should not, be in favor of being part of a union. President-elect Obama has promised that passage of this law will be one of the highest priorities when he takes office in January, 2009.

Union membership has been on a steady decline throughout the United States, and across virtually all industries, over the past 40 years. The pendulum, however, is going to move back in favor of union organizing immediately after passage of the EFCA. The union movement recognizes that factory jobs are in permanent decline. Therefore expect a very concerted effort buttressed by EFCA to organize service workers and other workers not traditionally represented by unions.

Below are some of the changes in the law under the EFCA:

Current Law

If a union obtains a majority of "authorization cards," an employer has a right to demand a secret ballot election, conducted by the NLRB, to determine if employees want to vote in favor of having a union.

There essentially are no limitations on what a union can tell employees during an organizing drive. The supporting logic for this in the past is that (1) employees would have the opportunity to vote in a secret election conducted by the NLRB, and (2) employers would have the opportunity to educate employees during a campaign leading up to a secret ballot election.

If a union is certified as the collective bargaining representative, an employer has a duty to bargain in good faith. There is no legal obligation to enter into an oppressive collective bargaining agreement

If an employer discriminates (terminates) an employee because of union involvement, the employee is entitled to reinstatement with back pay.

Under current law, there are generally no financial penalties assessed against either unions or employers in the event of a finding of unfair labor practices.

Under EFCA

If a union collects a majority of "authorization cards," the NLRB would be required to certify the union as the bargaining representative without an election. The NLRB is specifically "prohibited" from conducting a secret ballot election.

There would still be no limits on what unions can tell employees (including intentional misrepresentation), but there will be no opportunity to correct such misleading statements or otherwise educate employees. There will never be a "campaign" except on the union side. In fact, employers will, in most cases, not know that their employees are organizing until the union is formed.

The parties are required to commence bargaining within 10 days of certification. If no agreement is reached within 90 days, the parties are required to mediate. If no agreement is reached during the next 30 days, the matter is submitted to an arbitration panel with authority to "impose" a collective bargaining agreement on the parties!

If an employer is found to have terminated an employee due to union involvement, the employer will be required to reinstate the employee with three times back pay.

The EFCA would provide for fines of up to $20,000 per violation against employers for unfair labor practices. There would still be no penalty for unfair labor practices committed by unions!

In every union organizing campaign, many of the "authorization cards" signed by employees are signed for reasons other than a real desire to be represented by a union. At worst, they may be signed due to fear, intimidation, or peer pressure. At best, they may be signed in order to get organizers and co-workers to stop badgering them, or to stop them from coming to the employee's home and pestering them to sign the card. Under the current law, the employee can usually "undo" the signing of a card by voting their true wishes in a secret ballot election. However, under the EFCA, once the employee has signed the card they effectively have cast their vote irrevocably for the union.

Your Collective Bargaining Agreement

Once you are unionized, you have only a brief period (90 days) to agree to whatever the union demands in the way of wages, benefits, and working conditions. Failure to agree results in an arbitrator deciding what wages you will pay for the next two years, what benefits you must provide (and how much you must pay for those benefits), and all working conditions (including how and why you may terminate employees) applicable to employees in the bargaining unit. At this point, you have effectively lost control over the economics, and productivity, of your workforce. This sounds somewhat draconian, but EFCA is designed as a one-sided piece of legislation intended to reverse the 50 year slide of unions.

What Do I Need to Do?

You need to maintain a positive work environment that convinces employees that they do not need a union, and which provides many of the same benefits a union might promise would be achieved by a collective bargaining agreement. To that end employers who are non-union, and desire to stay that way need to: (1) conduct an audit of their personnel policies and practices, as well as their compensation and benefits; (2) make sure your employee relations practices create a positive environment and an attitude of pride in your company as a good place to work; (3) train your managers as to the risks and ways to communicate with employees; and (4) educate your workforce about the costs and potential downsides to unionization.

The labor attorneys at Shumaker Williams P.C. are ready to help you. Contact Marc Tarlow at (717) 718-8304 to discuss ways we can assist in keeping your company union-free.