Author(s): S. Kato Crews
Published: 03/01/2009
There has been much ado about the Employee Free Choice Act (EFCA) since Barack Obama took over as our nation's commander in chief. Wasting no time, both houses of Congress introduced the EFCA on March 10, 2009 (S. 560 and H.R. 1409). If passed, the EFCA would radically amend the National Labor Relations Act (NLRA) and make it much easier for unions to organize non-union companies. Employers who fail to educate themselves on this significant piece of legislation, and fail to take steps now to prepare for its possible passage, could be caught off-guard and find themselves on the losing end of a silent union organizing effort.
The EFCA was first introduced in Congress unsuccessfully in 2003. It was reintroduced in 2005 and 2007, the latter time failing due to a filibuster in the Senate. With the new Democratic administration favoring the EFCA, labor has renewed energy and optimism to fight for the passage of this legislation.
Union Organizing Under Current Law
Currently, the NLRA requires a union to obtain signatures on "authorization cards" from a minimum of 30% of all employees in a proposed bargaining unit prior to filing an election petition with the National Labor Relations Board (NLRB). An authorization card is a written document representing an employee's agreement that the union is his or her representative for the purpose of collective bargaining. If a union obtains signatures from more than 50% of the employees in a proposed bargaining unit, it may attempt to bypass an NLRB-conducted election by demanding that the employer recognize the union as the employees' collective bargaining representative. The employer may refuse to rec- ognize the union and can insist upon an NLRB conducted election.
Under either election scenario, there is typically a 42-day period in which the union and the employer campaign. This is a critical period in which the employer may campaign to remain union-free by doing things such as explaining to employees the benefits they presently enjoy in their employment and reminding them that those benefits have been provided voluntarily without the need for a union, explaining that changes in wages and benefits under a collective bargaining agreement are negotiable and not automatic, and communicating other factual and lawful statements to the workforce in favor of remaining union-free.
At the conclusion of the campaign period, employees have the opportunity to exercise their right to vote for or against union representation by completing a secret ballot and placing it in a ballot box. An agent from the NLRB oversees these procedures.
Union Organizing Under the EFCA
Under the EFCA as currently introduced, the vital campaign period is thrown out the window, and with it, the secret ballot election. If a union obtains signed authorization cards from more than 50% of the employees in a proposed bargaining unit, it can take those cards directly to the NLRB. Then, the NLRB would not direct an election, but instead would be required to certify the union as the bargaining representative for those employees. In other words, the union-free company has just become unionized without one ballot being cast, without the opportunity to campaign to remain union-free, and likely without any knowledge that a union was attempting to organize the employer's workforce.
Other fundamental changes are: (1) Once the NLRB certifies the union as the bargaining representative, the employer and union would have 90 days to enter a negotiated collective bargaining agreement. If they fail to reach an agreement, the parties have 30 days to use the assistance of a mediator. If negotiations still fail, an arbitration panel (having no familiarity with the employer) would decide what terms and conditions of employment would apply for the first two years. (2) Employers who commit unfair labor practices while employees are organizing or after the union has been certified as their bargaining representative are subject to increased penalties, including a civil penalty not to exceed $20,000 for each violation.
Practical Significance
There is much employers can do now to prepare for the EFCA's possible enactment into law. The first step is to get educated about both the NLRA (e.g., knowing and understanding what employers currently can and cannot say or do in an effort to remain union-free) and the EFCA. Also, employers should review and update their policies, some of which have a bearing on the extent of organizing activity that may take place in work areas and during work time. Building sound employee relations is key, which includes improving communications with employees and increasing employee understanding of the terms and conditions of their employment. Whether it passes or not, the steps employers should take now to prepare for the EFCA can foster good employee relations and increase employee morale, which are important fundamentals to the success of any business entity.
S. Kato Crews is a partner practicing in both RJ&L's Colorado Springs and Denver offices. His practice emphasizes the representation of employers in federal and state court in litigation involving unlawful discrimination/harassment, retaliation, wrongful discharge, noncompete agreements, and other claims. He also represents employers in administrative proceedings before the NLRB, EEOC, and other federal and state agencies, and represents management in union grievance arbitrations. In an effort to assist his clients in preempting litigation, Mr. Crews routinely counsels employers on a host of issues involving general workforce management and effective means of communicating employment decisions and policies to the workforce. He can be reached at 719.386.3017 or by e-mail at kcrews@rothgerber.com.