EFCA (Employee Free Choice Act):
Lately EFCA has been gaining national attention, a bill that can revert the trend of declining numbers in labor unions. Highly controversial for its proposed changes, the bill will completely replace the secret ballot election with card check which requires only 50 % + 1 signatures in support for union representation. A detailed overview of the proposed bill and its practical effects are highlighted in the article below.
At the top of labor's wish list is EFCA, a bill that would radically alter 75 years of labor law governing the representation rights of employees. Specifically, EFCA would fundamentally change three critical aspects of the National Labor Relations Act (NLRA) by:
· Providing for the elimination of NLRB-supervised secret ballot elections in favor of "card check," thereby enabling unions to organize employees merely by convincing or coercing a majority of them to sign authorization cards;
· Changing the rules of bargaining by imposing mandatory interest arbitration on those parties who fail to reach an agreement on their own within 130 days; and
· Subjecting employers to substantially increased penalties and remedial relief.
Until now, an employer "blind-sided" by an underground organizing campaign could respond during the ensuing six-week "campaign" period, during which time it remained free to educate employees on the risks of union representation prior to a secret-ballot election. But in the wake of EFCA ill-prepared employers could suddenly find themselves unionized without so much as a single ballot cast. A drastically streamlined representation process would substantially compromise employers' ability to counter organizing through an informational communications campaign.
1. Limited Time to Respond: If EFCA passes, unions will step up their efforts to utilize secretive card-signing campaigns. This tactic, if left unchecked, would short circuit employer efforts to furnish information explaining the benefits of remaining union free. The employees would be making their decision with only the union's side of the story.
2. Union Pressure: Card-check will enable unions to utilize peer pressure and other forms of coercion to intimidate employees into signing cards, even though they may not actually desire third party representation.
3. Loss of Bargaining Rights and Interest Arbitration: If a union successfully organizes your business, a third party arbitrator could decide the terms and conditions of any resulting collective bargaining agreement. If employers don't like those terms, or worse, cannot make them economically viable, they would have little if any recourse, short of legal challenges on Constitutional grounds.
4. Guaranteed First Contracts: Another practical effect of EFCA is that employers will either have to agree to first contracts or risk having one imposed by an arbitrator. Regardless of how employers get saddled with first contracts, EFCA will require such contracts to stay in place for a minimum of two years.
5. Enhanced Penalties: Mandatory penalties of up to $20,000 per violation, applicable only to employers, could provide labor with a decisive advantage from the standpoint of regulatory enforcement. Compulsory injunctive relief would provide additional leverage. Taken together, these penalties threaten to drive up the cost of litigation during difficult economic times and would certainly encourage unions to file more frivolous unfair labor practice charges as a pressure tactic.
Conclusion
EFCA and the RESPECT Act present unprecedented challenges to employers. Fisher & Phillips has successfully assisted employers in defeating union organizing efforts over the years. We have learned from our experiences that the keys to success are to be proactive, put systems in place to recognize organizing efforts, identify issues that could be exploited by unions, and effectively address those issues so as to render third-party representation unnecessary. Employers that fail to take the pre-emptive actions necessary to deal with these new threats could well find themselves unionized and thereafter presenting information to an arbitrator who will unilaterally shape their work rules, wages, and benefits.
