News outlets are reporting that some Democrats in the Senate have agreed to drop the card check provision of the Employee Free Choice Act (“EFCA”). The card check provision was, perhaps, the most egregious part of EFCA, giving unions the right to force employers to recognize them when they obtain signatures from 50% + 1 of the employees in a bargaining unit. Contrary to current provisions of the National Labor Relations Act, unions would become the exclusive collective bargaining representative without a secret ballot election. Apparently, even with newly-seated Senator Franken of Minnesota, the Democrats do not have 60 votes in the Senate to defeat a filibuster and, therefore, have compromised.
However, the compromise is still a problem for employers. Under the reported compromise, the law would provide that elections will take place within 5 to 10 days after the union files a petition for an election. In addition, the law would prohibit employers from talking with the employees as a group in what is referred to as a “captive audience” speech, and allow union officials to have access to the employees in the employer’s facility. The reports did not address any compromises on remaining parts of EFCA, requiring binding arbitration for a first contract, if the union and employer do not agree, and increasing monetary penalties against employers.
Like other labor lawyers, we know that the more employees receive truthful information about unions and how unionization will change their lives, the less likely employees are to support the union. Employees are usually forced to join a union in states that do not have right-to-work laws, and employees represented by unions have to pay dues and special assessments and may be expelled from the union and terminated by the employer if the employees violate internal union rules.
Therefore, to protect the rights of employees who do not want a union, employers will need to revise their Union Avoidance Tool Kits. In light of these compromises, passage of EFCA-Light appears more likely. It is not too late for employers to start to determine who would and would not be in a unit represented by a union, to analyze the size and scope of units represented by a union, to draft and implement important employment policies, to train first-line supervisors and to educate employees even before the employer has knowledge of a union-organizing drive.