As introduced in Congress in 2007, and as passed by the House of Representatives, the EFCA would amend the National Labor Relations Act (NLRA) and result in three substantial labor law changes. First, the EFCA would make it significantly easier for a union to organize employees and require an employer to recognize and bargain with that union. Under current federal labor laws that govern private employers, following the filing of an election petition, which requires signed authorization cards from a minimum of 30% of the employees in the proposed bargaining unit, a secret ballot election is held by the National Labor Relations Board. A majority vote of those who cast ballots in the election is required for a union to be recognized as the exclusive representative of that group of employees. Under the EFCA, a union would become the exclusive bargaining representative as long as it could convince a majority of employees – that is 50% +1 of the employees in the sought-after bargaining unit – to sign union authorization cards. This change would strongly favor unions, because it would eliminate the secret ballot election process and the pre-election opportunity for employers to campaign against the union’s effort to organize the employees. Moreover, employees who did not sign cards, and employees who signed authorization cards without knowing the significance of their action, would not have the opportunity to vote against union representation.

Second, the EFCA would require that if the employer and the union are bargaining for their first contract and do not reach agreement within 90 days, either party could refer the matter to mediation. If mediation did not result in a collective bargaining agreement within 30 days, the matter would be referred to binding arbitration. The results of arbitration would be binding on both parties for two years. This process would significantly alter the collective bargaining process (which currently requires good faith negotiations, but does not require either party to make a concession). This process would also reduce an employer’s bargaining power (currently, employees have the right to strike if an agreement cannot be reached). Under the EFCA, a union could simply inflate its initial demands so that a negotiated agreement is not reached, resulting in mandatory arbitration and the terms and conditions of the employees’ employment being set by an arbitrator for up to two years.

Third, the EFCA would increase the penalties against employers for a violation of the NLRA during the time period when employees are seeking representation by a union or during the period after a union has been recognized as the exclusive representative until the first contract is entered into between the employer and the union. The increased penalties include: a civil penalty of up to $20,000 per violation, back pay plus two times that amount as liquidated damages, and stronger injunctive relief. As a result of the increased penalties, unions and employees would likely file more unfair labor practice charges, which will result in added costs for employers.

In order to prepare for EFCA legislation, employers should take the following actions:

  • have legal counsel review, at a minimum, your company’s solicitation/distribution, facility access, bulletin board, confidentiality and wage policies
  • train all members of management in the signs of union organizing, the legal effect of union authorization cards, the EFCA, the company’s philosophy about unions, and how to respond to employee inquiries about unions or pro-union statements
  • develop a plan to educate employees about the legal significance of union authorization cards and the company’s philosophy about unions
  • establish and place into practice a high level of conduct for members of management and employee-employer relations – timely address personnel issues, visit work units on off shifts, timely complete evaluations, ask about and listen to employees’ concerns, and reward hardworking employees

Be sure to read the companion bulletin about The RESPECT Act which seeks to narrow the definition of supervisor and thereby increase the number of employees who would have the right to join a union.