After much speculation about the timing of its introduction, a battle in both houses of Congress is set to begin following the introduction of the Employee Free Choice Act (EFCA) in the Senate and House of Representatives this morning. If passed, EFCA will radically reshape labor law in the United States.

Why Do You Care About the Passage of EFCA?

  • EFCA would eliminate secret ballot elections (the hallmark of a free and fair election process) and replace them with card check arrangements whereby unions could gain recognition by obtaining signed authorization from a majority of the employees comprising the bargaining unit. This eliminates anonymity, opens the door to peer pressure, and potentially denies employers the opportunity to participate in the process and provide employees with full information. The end result will be a massive increase in union organizing and union-represented workplaces.
  • The bill also provides for mandatory mediation and binding arbitration if employers and newly certified unions fail to reach a contract. Mediation is available after 90 days of bargaining and arbitration is available after 30 days of mediation. Ultimately, a government-appointed arbitrator could end up deciding what wages and benefits an employer must provide to its employees (regardless of whether the employer can afford such wages and benefits or whether such wages and benefits would place the employer at a competitive disadvantage). Even worse, the arbitrator-dictated contract would be effective for two years.
  • EFCA also sets much more stringent penalties for some types of employer unfair labor practices, including double damages and fines up to $20,000 per violation.  

What Employers Should Be Doing Now

Certainly, employers should be contacting their Congressman and Senators, urging them not to pass or to support this legislation. In addition, we recommend that employers:

  • Educate new hires and their existing workforce about unions and why unions are not in employees' best interests;
  • Conduct a comprehensive operational audit and institute administrative and operational changes with the goal of making the workplace one where employees will not consider a union;
  • Conduct surveys to ascertain union activity, employee issues or concerns and workplace morale, and take action steps to address any such concerns;
  • Conduct wage and benefit surveys to assess your competitiveness in the marketplace and consider appropriate adjustments;
  • Train and educate supervisors on how to spot signs of union activity and how to respond to it;
  • Review policies and procedures to take advantage of the most recent board rulings, some of which have been favorable to business; and
  • Seek positive press coverage regarding corporate citizenship and quality of work environment.