Unions’ Ability to Organize Employees Will Become Significantly Easier Under the So-Called Employee Free Choice Act

The End of Government-Supervised Secret Ballot Elections

Since the passage of the National Labor Relations Act over 70 years ago, employers have had an opportunity to tell their employees about the disadvantages of becoming a union member after a union commences its organizing drive and petitions the National Labor Relations Board (NLRB) to hold a secret ballot election. Employees have had the same opportunity for an open discussion of the plusses and minuses of unionization in their respective workplaces and to express whether they favor or disfavor a union in the privacy of a voting booth in an NLRB-supervised secret ballot election. These and other rules will change under the so-called Employee Free Choice Act (EFCA).

The EFCA eliminates important employee rights to a secret ballot election and to approve any collective bargaining agreement that may be negotiated on their behalf by a union. The timehonored period of pre-election campaigning by both the union and the employer where each can discuss the advantages and disadvantages of union representation will be a thing of the past, as will the opportunity for employees to cast ballots in secret without anyone knowing how they actually voted.

For 72 years, since the National Labor Relations Act was passed in 1935, the NLRB and the courts have developed a system of safeguards to ensure employee “free choice” in secret ballot elections. When either the union or the employer unlawfully interferes with employees’ ability to freely exercise their right to vote or to refrain from voting, elections are invalidated or an employer is ordered to bargain with the union if a free election proves impossible. These safeguards will become vestigial under the EFCA.

The Unions’ Agenda

The EFCA really is an attempt by unions to make it easier for them organize employees and, thereby, to increase their membership.

It is well-known that unions represent only about 7% of private sector employees in the United States and that union membership, over the years, has been dropping. As union membership dwindles, so, too, do the unions’ financial resources. Unions are not happy that they lose approximately 50% of all NLRB-sponsored secret ballot elections. Unions are not happy with employers having the opportunity to explain to employees some of the disadvantages of union membership. While unions attribute their losses to aggressive employer opposition, it is also apparent that unions have become largely irrelevant to American employees and employees are more comfortable and feel more secure, without having to pay a penny in union dues, working under fair employment policies with protection from written employment policies and federal and state employment statutes.

Certification Without an Election

Under the EFCA: 

  • The NLRB will “certify” a union as the exclusive collective bargaining representative of an entire bargaining unit of employees without any election if a majority of the employees simply sign union authorization cards. Union authorization cards which have been required to obtain to petition for an election now will be used to avoid one.
  • The provisions of the National Labor Relations Act guaranteeing employees the right to an NLRB-supervised secret ballot election will be deleted.

The employer does not participate in the process where unions solicit employees to sign union authorization cards. In fact, union cards generally are obtained before the employer is even aware of the union’s card signing campaign. Obviously, unions will not tell employees about the disadvantages of union representation or offer employees any “free choice.” Public pressure in signing union cards is commonplace. Often, employees sign cards just to make the organizer go away. Typically, unions can and do say almost anything in order to convince employees to sign union authorization cards. Even lies and misrepresentations have not been held to be encumbrances to the validity of a union card. While the NLRB has developed rules about union election campaigns, the EFCA does not provide any rules concerning the gathering, validity, or revocation of union authorization cards or any oversight of union tactics in gathering authorization cards.

Any employer interference in unions’ card-gathering activities will be subject to enhanced scrutiny under the EFCA. Statutory penalties for unlawful discharges would be increased to provide for treble back pay and civil penalties of up to $20,000 for each unfair labor practice found to be willful or repeated. Needless to say, such a provision likely will encourage the filing of charges.

The Emasculation of the Parties’ Control Over Collective Bargaining

The EFCA expands the scope of the term “collective” for collective bargaining agreements by giving government-appointed arbitrators the ability to impose the terms of an initial agreement on both the union and the employer for two years. The traditional give-and-take of collective bargaining, where each side exerts economic pressure on the other, will give way to a procedural scheme that will remove control not only from the employer and the union but, more importantly, from the employees themselves, who no longer will be able to vote to ratify an initial agreement.

Under the EFCA: 

  • Bargaining must commence within 10 days of the union’s request to bargain after it is “certified” by the NLRB.
  •  If no agreement has been concluded after 90 days, both parties are required to proceed to binding interest arbitration before government-appointed mediators. 
  • Failing agreement, all outstanding issues will be resolved through binding interest arbitration, meaning that an arbitrator or arbitration board will decide the terms for a binding collective bargaining agreement that will remain in effect for 2 years.
  • The employer thus loses the ability to reject proposals that it feels are not in the best interests of the employees, the company or its customers. The EFCA does not specify any limits on the authority of the mediators to impose wages, benefits and terms and conditions of employment.

There is no provision for any appeal of contract terms that the employer feels are onerous or debilitating to its business. This system of mandatory interest arbitration is somewhat prevalent in the public employee arena where it becomes a substitute for employees’ right to strike, which is not curtailed in any way by the EFCA. The result of mandatory interest arbitration in the public sector has resulted in costly contracts that generally are not in the best fiscal interests of the municipalities or taxpayers.

Steps for Employers – Educate Employees Early

Since an employer will not be in a position to know exactly when a union embarks on an authorization card campaign, employers will have to be more proactive in addressing employees’ vulnerability to a union card signing campaign before it happens.

Employees often are predisposed to listen to the union’s pitch because they experience some level of discontent in their work or workplace. In order to convince employees in advance to reject an overture from a union, employers should take care to avoid some of the common missteps that often lead to employee discontent and unionization:

  • Eliminate employee dissatisfaction 
  • Unfair or unequal treatment or favoritism, whether real or perceived. 
  • Wages or benefits below the industry standard. 
  • Ignoring grievances, complaints or employee concerns. 
  • Lack of meaningful communication with supervisors and managers. 
  • Inconsistent application of, or lack of, written policies or procedures, feelings of insecurity or uncertainty about the company’s future or the employee’s future with the company. 
  • Lack of a “pat on the back” or individual recognition.
  • Recognizing areas of vulnerability, and correcting them, will go a long way to prevent employees to become predisposed to union overtures and to say “no” to union organizing.
  • Educate employees to say “no” to unionization 
  • In the past, employers have been reluctant to use the “union” word, fearing that embarking on a proactive anti-union campaign may raise questions among its workforce and even promote union organizing. Under the EFCA, employers no longer will have the luxury of waiting until they learn of a union organizing drive to begin to educate its employees about the disadvantages of