Barack Obama's victory virtually guarantees that some version of the Employee Free Choice Act of 2007 (Act)—the proposed legislation that would radically change the way in which unions organize workers—will become law in the near future. Obama has been a long-time and vocal supporter of the Act; in fact, he co-sponsored it when it was introduced into the Senate in 2007. Non-union employers need to brace themselves for the changes the Act will bring and begin to implement preventative measures in order to remain union-free. Leonard, Street and Deinard labor law attorneys Dominic Cecere and Tim Ewald recently recorded a podcast discussing the Act and the dangers it poses to employers. That podcast is available by clicking here.

The current version of the Employee Free Choice Act would change the way in which labor unions organize employees and bargain on their behalf in three significant ways.

  • The secret ballot process by which employees currently select union representation would be replaced by a more public, card check process. Rather than being allowed to express their opinions on unionization through the casting of secret ballots, employees would instead be approached by professional union organizers who will encourage them to simply sign authorization cards. If a majority of the workforce signs cards, the union becomes the bargaining representative for all members of the employee bargaining unit. The card check process all but eliminates an employer's ability to campaign against a union, creates the potential for intimidation and/or misinformation, and makes it less likely that an employee will express his/her true view on the issue.
  • The federal government would intervene into the employer/union contract negotiations early in the process and would be able to force the parties to submit any unresolved contract issues to an arbitrator, whose decision would be binding. Under the Act, the parties would be required to begin negotiations only 10 days after union certification, and a federal mediator would be injected into the process after only 90 days of bargaining. If, after another 30 days, the parties are not able to reach agreement, all "open" issues would be submitted to an arbitrator, whose decision would be binding on the parties. Employers could find themselves at the mercy of a third-party arbitrator who knows nothing about their business and/or their industry and yet has the power to establish wage rates, the level/cost of health benefits, work schedules, and any other term and condition of employment. This is a radical departure from the way bargaining currently works, which allows the parties to control the process.
  • Finally, the Act would dramatically increase the penalties imposed on employers—but not unions—found to have violated the law governing union organizing.

Employers wishing to maintain direct relationships with their employees and avoid dealing through a union need to develop and adhere to a strategy to remain union-free. Employers need to know whether they are susceptible to a union organizing effort and they need to educate their supervisors and managers about unions and the organization process.