• After the Elections - The Employee Free Choice Act
  • December 1, 2008
  • Law Firm: Squire, Sanders & Dempsey L.L.P. - Cleveland Office
  • With the victory of President-elect Barack Obama, passage of the so-called Employee Free Choice Act (EFCA) may be inevitable.

    What is the EFCA?

    Though it is a comprehensive bill, the four main planks of the EFCA can be summarized as follows:

    • Card Check Elections. Under the EFCA, an employer could be unionized if 51 percent of employees sign cards indicating their support for a union. The law would effectively remove the protection of the secret ballot that employees have had since the National Labor Relations Act was enacted in 1935. As many have noted, this opens the door to intimidation from union officials to obtain the employee's card check, making the decision hardly a "free choice." Also under this provision, a workforce could become unionized even if many of the employees were never asked.
    • Mediation and Binding Arbitration. If a newly certified union cannot reach agreement with an employer for a first contract after 90 days, assistance can be sought from the Federal Mediation and Conciliation Service (FMCS). If such assistance does not result in a contract within 30 days, FMCS must refer the matter to binding arbitration. The results of the arbitration would be binding on the parties for two years.
    • Civil Penalties and Remedies. Civil penalties of up to $20,000 per violation could be ordered against employers found to have willfully or repeatedly violated employees' rights in either a campaign or in relationship to a first contract negotiation. As well, back pay awards would be tripled if an employer is found to have unlawfully discriminated against an employee in a campaign.
    • Expanded Authority of NLRB. The circumstances in which the National Labor Relations Board (NLRB) can seek injunctive relief against an employer would be expanded to include cases where there is simply "reason to believe" that the employer has engaged in conduct that interferes with employees rights during an organizing campaign or a first contract situation.

    These provisions have been met with widespread criticism in many sectors, and some or all of them will almost certainly face legal challenge if passed into law. However, regardless of whether the EFCA passes in its current form or in a compromised version, there is no question the country will experience unionization efforts on a scale that has not been seen in decades. At a minimum, the NLRB and the Office of the General Counsel will be controlled by labor-friendly advocates, and that alone would energize unions. Thus, it is critical for employers to take a proactive approach to the prospect of an organizing campaign, and not wait until the petition is filed to begin a response.

    What can you do?

    There are several steps you can take to either slow down a campaign or possibly defeat it altogether.

    1. Implement management training to foster good relations with the employees. Satisfied employees do not generally seek to unionize.
    2. Take swift measures against any employee who intimidates or threatens another employee in order to obtain the employee's card check. Employers will have to tread carefully, as the law already permits employees (in certain times and circumstances) to solicit fellow employees to join the union. But persuasion and propaganda cannot be replaced by threats. No law, including the proposed law, allows anyone to intimidate an employee.
    3. Educate employees regarding the realities of what a unionized workforce would mean. Here, too, the law creates a "delicate minefield" through which the employer must pass. However, proactive union avoidance strategies remain viable and effective tools for the employer. Supervisors must be carefully trained in the "do's and don'ts" of organizing campaigns, as certain illegal statements or actions can result in the union becoming recognized by law, with or without an election or card check.

    Clearly the specter of the proposed EFCA creates an entirely new landscape for everyone in the labor field – union lawyers, management lawyers, the NLRB, administrative law judges and the courts. Those most directly affected are employees and management. For now, the only certainty is that if it was important before, consultation with experienced management lawyers is now an imperative.