• Is The Sky Falling for Union-Free Employers?
  • November 19, 2008
  • Law Firm: Elarbee, Thompson, Sapp & Wilson, LLP - Atlanta Office
  • After Barack Obama's historic win in yesterday's election, union-free employers will now confront the equally historic impact of the Employee Free Choice Act (EFCA). The EFCA allows union representation of employees without an election if a majority of employees sign union cards, while eliminating an employer's six week campaign to convince employees they should vote "no" to unionization in a secret ballot election.

    President-elect Obama supports and will sign the EFCA, which requires an employer to bargain immediately with a union if a majority of employees sign union cards. Not only does the EFCA eliminate secret ballot elections, collective bargaining over a first contract changes dramatically. Under existing law, an employer and the union usually negotiate for months if not years in an attempt to reach a first contract. The EFCA requires the parties to reach an agreement within 120 days or face arbitration over the terms of a collective bargaining agreement. Under current law, employees are free to file a petition to decertify the union if an agreement is not reached in one year, but the EFCA eliminates an employer's ability to bargain hard for months over the terms of a first contract in an attempt to refine key language and reach agreement over key economic items to preserve the employer's competitive advantage. Instead, if the employer and the union do not negotiate a collective bargaining agreement within 120 days, the EFCA mandates the use of an arbitrator to determine both the language and the economic terms of the union contract. This provision of the EFCA may prove more problematic than the elimination of secret ballot elections to determine whether employees will be represented by a labor union.

    Based on yesterday's election, passage of the EFCA seems inevitable. Your organization's ability to retain its union-free status is not hopeless, but immediate action is imperative.

    The "sky is not falling" for employers who are prepared.