In a previous article, we provided you with information regarding the proposed Employee Free Choice Act (“EFCA”), a hot topic for many employers. Characterized as the most aggressive, sweeping changes to the U.S. labor rules since the National Labor Relations Act was passed over 70 years ago, the proposed EFCA would: (1) eliminate secret ballot elections by requiring the National Labor Relations Board to certify a union as the exclusive representative of all employees in a work unit if the union obtained authorization cards from a majority of employees in the work unit; (2) require mediation and then binding arbitration if the employer does not agree to the union’s bargaining demands within 90 days; and (3) impose new penalties for labor law violations after a union is certified. Click here for a link to that previous communication.

The current state of the EFCA

The EFCA bill was introduced most recently in Congress in March 2009 (H.R. 1409 and S. 560). A Democratic majority in the Senate initially appeared ready to pass the bill in its current form. However, so far the majority has been unable to assemble the 60 votes needed to end debate and bring the measure to a vote. President Obama, speaking in support of the EFCA, recently acknowledged that compromises must be reached in order for the bill to become law. Some of the compromises that have been suggested include:

  • Employees could mail their ballots to the NLRB instead of signing cards to determine whether a majority wanted a union to represent them.
  • Timetables could be established to require an election to be held within 10 to 21 days of the filing of a representation petition.
  • Instead of mandatory arbitration after 120 days of negotiations on a first contract, an arbitrator would become involved only of the parties fail to reach agreement after each of their best and final offers.
  • The establishment of a schedule for negotiation as well as imposing costs and attorneys’ fees upon a finding that a party is not negotiating in good faith.
  • Alternatives to binding arbitration, including limited interest arbitration, and allowing an employee vote on management’s best and final offer.

In March 2009, Senator Joe Sestak (D-Pa.) introduced alternative legislation to EFCA called the National Labor Relations Modernization Act (“NLRMA”). This proposed legislation does not include the “card check” provision of EFCA, but did include granting “equal access” to employees for labor unions. Examples of equal access include: refusing to allow an employer to hold a “captive audience meeting” with employees unless the union has equal time; and requiring employers to give notice to union organizers of any company announcements, signs, literature so that union organizers may respond. Denial of equal access would amount to an unfair labor practice.

Unions anticipate passage of a labor law reform bill, in some form, by October 2009. Accordingly, employers should be prepared for a resurgence of union organizing activity.

What can employers do now?

Employers should stay attuned to EFCA developments. If EFCA passes it will signal a major change in labor law and employers should be ready to respond to the new legislation. Employers should develop their workplaces into an environment in which they can quickly educate employees about unions. This includes training your company’s supervisors about what they can and cannot say and do in discussing unions with employees. It also includes steps to combat one of the most common reasons that employees become interested in union—their belief that the company “doesn’t care, isn’t fair and won’t listen.”