August 21, 2009Client Alert

The Metamorphosis of EFCA: What’s the Latest?

Some suggest that the Senate is progressing towards a vote on some form of the Employee Free Choice Act (“EFCA”) as early as September. Others say no vote will be taken until the issued health care reform has been put to rest sometime in 2010, and until Senator Edward Kennedy and Senator Robert Byrd, both Democrats, are physically able to attend the vote. Democrats in the Senate have been working among themselves to come up with a compromise bill that will guarantee all 60 democratic votes when the bill comes to the floor. Sixty votes will allow for “cloture”-- that is, the ability of the Senate Democrats to end debate and to force a vote on the proposed legislation. With 60 votes, of course, the Democrats could pass the bill, as well.

Whatever form it takes, EFCA will amend the National Labor Relations Act to make it easier for unions to organize employer workforces. In its early form, EFCA as proposed would have done three major things: (1) eliminate the need of secret ballot elections by which employees traditionally have voted to be, or not to be, represented by a union; (2) require binding arbitration in the event a union were chosen by employees to represent them, but were unable to come to terms with the employer on a first labor agreement; and (3) increase the financial and other penalties that an employer would suffer in the event it committed unfair labor practices during the course of a union’s attempt to organize its workforce.

It appears that the secret ballot election may be preserved in the bill that comes to the floor. That is good news. Most of us Americans, after all, believe that voting for your candidate without anybody looking over your shoulder is the way our representatives, whether people or unions, ought to be elected. However, the binding arbitration requirement of the original proposed bill is very threatening to employers’ interests. Simply put, under this provision, if the union and employer can’t reach agreement on a first contract, a third party arbitrator is empowered to select terms and impose a contract on the parties. Some sources suggest that the compromise bill might therefore limit the circumstances under which arbitration might be ordered on the terms that an arbitrator might be able to impose on the parties.

While the compromise bill reportedly would maintain the mechanism of the secret ballot election, it would include a requirement for a greatly-expedited election -- just five to 10 days after a union or group of employees has filed a petition. That reduction of the present 42-day period from the filing of a petition would make it difficult for an employer to fight a union’s campaign, which is almost always conducted without notice to the employer and intentionally in secret. Unless an employer was well prepared in advance to communicate with its employees about the realities of a unionized work force in a “quickie campaign,” the employer would have little time to counter the union’s underground messages.

The compromise reportedly would also eliminate the present 12-day period within which an employer may object to the appropriateness of the claimed bargaining unit (that is, the group of employees to be represented in the event the union wins the election) and to the inclusion within that bargaining unit of employees the employer contends are supervisors, managers or professional employees. That change could hand to an employer the obligation to accept any but the most obviously inappropriate bargaining unit proposed by the petitioning group of employees or union.

The compromise reportedly would additionally prohibit an employer from requiring its employees to attend meetings on the clock to hear its perspective on the union’s organizing attempt; would require the employer to give union representatives full access (whatever that might mean) to its workplace once a petition were filed; and would allow the union immediate access to the names and addresses of the employer’s employees once a petition were filed. Moreover, the compromise may maintain the provision for enhanced penalties for employers who discriminate against employees engaging in union organizing activities. Those penalties reportedly would include a forfeiture of up to $20,000 per occurrence and treble back-pay damages in the event an employee were unlawfully suspended or terminated.

Whatever form of EFCA ultimately passes -- and the passage of some form is nearly inevitable -- employers should prepare well in advance for a unionization attempt in order to be ready to fight it immediately upon learning of it. Whatever the outcome of the congressional fight over EFCA, employers should be working hard now to remain union free. The best defense, after all, is a good offense. Employers should consider the following, among other things:

  • Conduct a “vulnerability audit” of your company generally and your employee relations specifically.
  • Assemble a diverse team of managers and supervisors to prepare a tailored employment relations plan and a corporate campaign defense plan.
  • Train your managers and supervisors to recognize and respond to organizing tactics, picketing, handbilling, etc. in lawful ways.
  • Review, update and enforce policies regarding solicitation, the distribution of materials, and employee and outsider access to your premises.
  • Revise or adopt other employment policies that will help promote continued union-free status. Settle upon a clear, detailed and consistent message all in management know and buy into to offer your employees in the event of a five- to 10-day period from petition to election.
  • Ensure that your company’s leadership is committed to having an issue-free workplace.
  • Consider the employment relations impact of all your decisions.
  • Remember that the way you treat your employees today will determine how your employees treat you tomorrow.
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