A New Law Could Make Unionizing Your Employees Easy
By: RICHARD A. ROSS
April 2009
The Employee Free Choice Act (EFCA)—recently referred to by some commentators as the Employee Forced Choice Act—is proposed national legislation that would overturn nearly 60 years of traditional labor law by amending the National Labor Relations Act, in several unprecedented and extremely significant ways. In a nutshell, companies that are not currently unionized will have a substantially increased possibility of becoming organized.
Currently, if your employees choose to become unionized, the union must first file a petition with the National Labor Relations Board (NLRB), and then the employees get to vote in a secret-ballot election. In order to file the petition, the union must obtain authorization cards from at least 30 percent of the unit of employees they seek to represent. Typically, the secret ballot election is held within six (6) weeks after the petition is filed. During that period of time, the employer (as well as the union) engages in a campaign to convince employees to vote one way or the other. Frequently, this is the first opportunity for the employer to explain to employees its position on the union and to attempt to convince employees to vote for no union. The secret ballot election is conducted by the NLRB and nobody ever knows how each employee voted.
This could all change if a new law is enacted by Congress. The EFCA is a proposed bill that would effectively eliminate secret ballot elections, as well as make several other significant changes to the National Labor Relations Act.
The EFCA, if passed in its current version, would permit unions to become the certified representatives of employees merely by submitting 50 percent plus one cards, signed by the employees, to the NLRB. Because union organizing is usually conducted below the radar, it is likely that many employers will find themselves organized without having had an opportunity to campaign against the union.
Employers who wish to avoid unionization of their workforce should be taking preventive measures now. What can an employer do now? We recommend that all managers and supervisors receive appropriate training on how unions organize, what managers and supervisors can say to employees about unions, and what they cannot say to employees about unions. In addition, and perhaps most importantly, employers should be training their employees specifically on what their rights are with respect to being asked to sign cards and how to respond to requests to sign cards. Because there is ample historical data reflecting situations in which employees have been intimidated, coerced or pressured to sign cards, employees need to know what they can do and what they can say if they do not want to sign cards.
Providing your employees with sufficient information before they are approached by a union, or by a co‑worker who is trying to organize the company, may be the only way to avoid becoming a union shop.
In addition to creating the possibility of stealth organizing efforts, the EFCA, as currently drafted, provides that a union can demand initial bargaining over terms and conditions of employment to begin within ten (10) days. If an agreement with the union is not reached within ninety (90) days, the union can request that the Federal Mediation and Conciliation Service (FMCS) mediate the terms of a collective bargaining agreement. If an agreement still cannot be reached after an additional thirty (30) days, the negotiation can be referred to an arbitrator or arbitrator panel of the FMCS and the arbitrator(s) determines all remaining contract issues, including pay, benefits, hours, or work. Experience teaches us that first contracts are rarely finished in 120 days. Thus, it is very likely that many of the terms of a new contract will be decided by an arbitrator(s), effectively depriving not only the employer but also employees from having a say in the terms of the contract.
Under current law, if the NLRB determines that an employee is discharged because of their union activities, the remedies are limited to reinstatement and full back pay. However, the EFCA, as currently drafted, provides for liquidated damages of two times back pay, in addition to an employee’s back pay, if an employer unlawfully terminates pro‑union employees in certain circumstances. In addition, the EFCA would impose a $20,000 penalty on employers for each violation if the NLRB and/or if a court finds that the violation is willful or repetitive. Currently no such penalties exist.
Takeaway
Presently, there is no guarantee that this bill will pass, or if it does, that it will pass in its current form. However, it is very clear that this has become the number one priority of unions and they made it one of their primary issues during the recent national elections. Many U.S. Representatives and U.S. Senators are currently in favor of enacting this bill, including several Republican Senators. We don’t know what the Las Vegas odds are on this bill, but employers need to be aware and forearmed with appropriate information in the event it is passed.