PREPARING FOR THE
EMPLOYEE FREE CHOICE ACT
Thomas P. Brady and Daniel J.
Bretz
For the first
time in sixty years, major changes in federal labor law are on the
horizon. In 2006, the House of
Representatives easily passed the Employee Free Choice Act (EFCA). The
bill was stopped in the Senate, and President Bush threatened to veto
it. However, if the Democrats
gain control of both houses of Congress and the White House, the passage
of the EFCA will become a priority for
unions and the Democrats.
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 union election. 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
National Labor Relations Board.
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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