PREPARING FOR THE EFCA - UPDATE
Thomas P. Brady and Daniel J.
Bretz
On March 10,
2009, the Employee Free Choice Act (EFCA) was introduced in both the
United States House of Representatives, HR. 1409, and the Senate, S.
560. It is expected to pass easily in the House where it has 222
sponsors and co-sponsors. It may have problems passing in the
Senate. During his campaign, President Obama indicated that he
would sign the Act if it reached his desk. The EFCA will be the
first major change in federal labor law in sixty years.
If it becomes
law, the EFCA will impact employers in three ways.
First, it will
effectively take away the employer's ability to campaign prior to a
representation election conducted by the National Labor Relations
Board (NLRB). Under the
current federal labor laws, most unions win the right to represent
the employees of a company through a secret ballot election. Prior to the election, the employer
is notified that a union is attempting to organize the employer's
workforce and is given an opportunity to express its views regarding
unionization. The EFCA will
allow unions to represent employees without a secret ballot
election. Instead, unions will
become bargaining representatives after obtaining authorization cards
from a simple majority of the employees and filing the cards with the
NLRB. This procedure will
allow unions to run "stealth" campaigns and obtain cards
directly from employees without any notice to the employer,
preventing the employer from expressing its opinion or telling its
side of the story.
Second, the
EFCA will require that employers who do not reach agreement with a
newly certified union must accept contract terms imposed by a
government appointed arbitration panel. Current federal law requires that an
employer bargain in good faith over the wages, hours, and other terms
and conditions of employment with the union that represents its
employees. But, the current
law specifically states that the employer is not compelled to agree
to a proposal or make any concessions. Under the EFCA, if the parties do
not reach a first contract within 120 days, the Federal Mediation and
Conciliation Service must refer the dispute to an arbitration
board. An arbitration panel
will render a decision settling any disputed contract
provisions. This decision will
be binding on the parties for two years.
Third, the
EFCA changes the current federal law from a remedial act to one that
punishes employers with economic sanctions and penalties. Unions, on the other hand, do not
face the same penalties imposed on employers. The EFCA requires the NLRB to award
employees back pay plus two times the employee's back pay as
liquidated damages if the employee is terminated in violation of the
Act. The EFCA also provides
for a civil penalty not to exceed $20,000 for each violation where an
employer willfully and repeatedly commits any unfair labor
practice. This provision
applies during the period where the employees were seeking
representation by a labor organization or during the period the
parties are negotiating the first collective bargaining
agreement. The EFCA also makes
it easier for the NLRB to obtain injunctive relief against the
employer. There are no similar
punitive provisions against unions.
What steps
should an employer take now to prepare for this radical change in
federal labor law? Here are
some suggestions that will help employers avoid liability under both
the current law and the EFCA:
·
Review your
non-solicitation and non-distribution policies to ensure they comply
with recent NLRB decisions and provide you the maximum amount of
protection.
·
Ensure that
the non-solicitation and non-distribution policies are enforced in a
non-discriminatory manner.
·
Enforce your
property rights to ensure that third party solicitors and organizers
are not allowed on company property.
·
Conduct a
union vulnerability audit and fix policies and problems noted in the
audit.
·
Train your
supervisors on the warning signs that a union is conducting a card
signing campaign.
·
Train your
supervisors on what they can and cannot do during union organizing or
card collection campaigns.
They must avoid threats, interrogation, promises and
surveillance of employees.
·
Ensure that
positive employee relations are practiced, and that the company is a
good place to work without third party intervention.
·
Educate the
employees on the full meaning and impact involved in signing union
authorization cards, and that signing a card will likely result in
the loss of their right to a secret ballot election.
·
Start
collecting comparative market data to ensure that you are in step
with your competitors and to prepare for possible negotiations.
·
As always,
conduct impartial investigations into employee misconduct and require
accurate documentation for any discipline or discharge. You may have to defend these
decisions to avoid treble damages.
These
preventative steps will help you combat union organizational
campaigns and prevent the company from being assessed damages and
possible fines.
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