With the election of the new President and a nearly filibuster-proof Senate, some form of the Employee Free Choice Act (EFCA) is likely to be passed next year. EFCA will create broad new organizing opportunities for unions.
In EFCA’s current form, unions will be certified to represent employees whenever a simple majority of employees in an appropriate unit sign union authorization cards. This streamlined union representation process will take away an employee’s longstanding right to a secret ballot union election. In addition, if a union and employer cannot reach an agreement on an initial contract within 120 days, the newly certified union can invoke mandatory interest arbitration and an interest arbitrator will have the power to impose initial labor contract terms on the employer and its employees.
In determining the initial labor contract, an interest arbitrator will decide all open issues, including wages, benefits, hours, and other terms and conditions of employment. This initial contract will be binding for a period of two years. Finally, EFCA in its current form will significantly increase penalties for employer unfair labor practices during any union organizing period. Mandatory injunctions, liquidated damages, and civil penalties up to $20,000 per violation are proposed.
EFCA is expected to increase dramatically union membership. Indeed, countries which have adopted this type of law have union membership that is three to four times higher than in the United States.
Employers should consider undertaking an evaluation of their vulnerability to union organizing in light of EFCA and the labor movement’s changing organizing tactics. Preparing in advance for EFCA will place employers in a much stronger position to respond to union organizing. A key part of this process is conducting a vulnerability audit. In addition, employers should undertake a legal review of potential bargaining unit issues, supervisory status, and other legal questions related to union organizing. Finally, training managers on how to prepare for and respond to union activity in a legal and effective manner is a key aspect to any proactive employer program.
Employers should also be aware that EFCA is not the only labor legislation that is on the horizon. Other federal legislation that may very well be passed by the new Congress includes the RESPECT Act, which modifies the NLRA definition of a supervisor, the Patriot Act, which provides incentives for employer neutrality in union organizing, and blacklisting for federal contractors that violate labor and employment laws.