We have prepared this edition to provide a comprehensive understanding of the Employee Free Choice Act. Unions seek to represent more workers than ever before and as senator, Barack Obama sponsored legislation towards that goal. The Employee Free Choice Act was resubmitted in both houses of Congress on March 10, 2009. This legislation would make it easier for unions to organize, plus it would impose tougher penalties on employers who violate the labor laws.

How Do Unions Become Recognized Today?
Generally, under the National Labor Relations Act (NLRA), the union needs to show interest in forming a union at the particular workplace (30% sign cards or a “card check”); a secret election is held to determine majority support; and the union is officially recognized and the collective bargaining process must begin. The current scheme allows for a very important election campaign where the employer can make its case for workers to remain union free.

What Are the Changes under the Employee Free Choice Act?
The legislation eliminates the crucial campaign period and the secret ballot election. If the union acquires signed authorization cards from fifty percent of the workforce, the NLRB must certify the union. The union has come in without a campaign explaining the changes a union will bring, without a secret ballot election, and perhaps without the employer knowing that a union was trying to organize the workforce.

Another significant change is the imposition of mandatory mediation after 90 days if the new union and the employer cannot agree on an initial collective bargaining agreement. If the parties cannot agree after 30 days of mediation, the contract will go to binding arbitration and an arbitrator will determine the terms of the initial collective bargaining agreement. Moreover, the legislation would levy a $20,000 civil penalty per violation for an employer who commits an unfair labor practice while the union is organizing or after the union has been certified.

What Is the Likelihood the Employee Free Choice Act Will Succeed?
Recent political and economic changes have slowed down some of the unions’ momentum but there is a strong commitment in both the House and the Senate to fundamentally change the way unions organize. For instance, Sen. Dianne Feinstein (D., CA) has suggested a compromise where workers sign cards and mail them to the NLRB on their own. Sen. Arlen Specter (D., PA) has backed away from his initial support of the bill but has stated that elections should be quicker. Even business is trying to control the impact as the CEOs of Costco, Starbucks, and Whole Foods are meeting with lawmakers and offering a compromise to the current legislation: drop card checks and mandatory arbitration in exchange for giving the unions greater access to employees, union elections within a specific time period, and keeping the civil penalties. The unions are committed to a surge in membership, but if Congress gets bogged down a compromise might end up as the solution.

What Can An Employer Do?
As always, building solid employee relations is critical, including improved communications with employees and clear expectations of the terms and conditions of employment. Now is the time to develop best practices that will allow you to achieve your goal when the union knocks. Should the law pass, employers will need to become educated in the National Labor Relations Act and to update policies that impact the extent of organizing activities at the workplace and on work time.

How can we help? You can reach us at 508.548.4888 or info@foleylawpractice.com