Employee Free Choice Act Has Come Back With A Vengeance
The Employee Free Choice Act (EFCA), otherwise known as the "card check"
law, has been overshadowed by the dismal economic news the past several
months. But just last week, the Act came back to life, and was
reintroduced in the United States House of Representatives with full
support of President Obama. The Act would dramatically change how
unions can organize, providing them with tremendous leverage over
employers.
As the economy continues to falter, the Act has grown in controversy
between Republicans and Democrats alike. But one fact is certain - if
enacted, the Act has the potential to impact employer and employees in
serious ways. The EFCA involves three major changes in labor laws that
impact employers, including:
1. Certification of a group of employees on the basis of a majority signs up.
This "card-check" process would replace the current secret ballot
elections that allow both the unions and employers to engage in a
robust campaign for their prospective sides prior to the vote. The
elections are currently conducted by the NLRB. Under this proposed
bill, employers fear that unions can persuade their employees with
empty promises without the employers having a chance to rebuttal. Under
the EFCA, employers may never learn that there is an effort to unionize
their business until the union knocks on the back door with 51% of the
employees' support.
2. A fast track to obtaining a contract. If the
parties are unable to reach a negotiated agreement within 90 days, the
topics in the dispute will proceed to mediate then binding arbitration.
Here, the arbitrator will have the final say and the contract will be
binding for two years on the parties. The fast track to contract
eliminates meaningful collective bargaining negotiations that can allow
time for the parties to reach agreeable terms without forced arbitrary
deadlines.
3. Enhanced penalties for employers who interfere with employees attempting to unionize or negotiate a first contract.
Civil fines up to $20,000 are proposed, as well as three times back pay
for employees terminated while exercising their rights under this Act.
Curiously, absent in the bills are any increased fines when union uses
coercive tactics.
The EFCA, if enacted, will generate enormous union membership
dues when unions obtain a majority of signatures without a secret
ballot vote at employers' work sites. Industries should be wary of this
legislation and take proactive measures before it is too late. The U.S.
Chamber of Commerce is actively opposing this bill and was at the
Capital in full force the day it was reintroduced.
Action is needed now. Employers should conduct
self-audits to ensure that their current salaries match the market
place. An underpaid workforce is more susceptible to unionizing efforts
for better wages. All Human Resources policies on the drawing board
should be finalized. Employers do not want an Arbitrator to finish off
their policies if the parties are at impasse. Employers are free to
educate employees now about the high costs of unions and why management
can more efficiently deliver better terms and conditions of employment
without the expense of negotiating with a union.
Open the lines of communication and find out the concerns of employees.
Employers may find that many of those concerns may be non-monetary and,
if addressed in a timely manner, there will not be a burning desire to
unionize with or without the passage of the EFCA. The key is to be
prepared.
Leonard Dietzen is a partner with the law firm Rumberger, Kirk & Caldwell, and represents private and public sector employers in all aspects of labor and employment law.