The Impending Impact of the Employee Free Choice Act

HR Advisor feature article | June 2009

During these past several months, many employment law changes have had employers scrambling to keep up, let alone comply.  However, an even bigger issue is anticipated to become a reality over the next few months. 

Congress has been addressing one of the most significant proposed labor law legislations in decades – the Employee Free Choice Act (EFCA). If passed, the EFCA would greatly ease and speed the process for employees to unionize.

There is a general misperception that the EFCA would not apply to small businesses which are covered by the National Labor Relations Act (NLRA) and which the EFCA amends. As such, no small business exemption exists in the EFCA.

Currently, if a union wants to represent an organization’s employees, it must gather signed authorization cards from 30% of the employees thus allowing the union a right to request an election. Then, during an open campaign period, the union and the employer would present information to the employees. During the election, a National Labor Relations Board representative monitors the process, and employees cast their secret votes. Under these conditions, employees suffer no pressure to vote one way or the other, and no one but the employees themselves know how they voted. In order to win, the union must receive 50% plus 1 of the votes in the secret ballot election.

Instead, the EFCA takes out the open campaign period and secret-ballot election process and simply requires a union to obtain cards signed by 50% plus 1 in order to establish the right of employee representation.  This leaves the employer without any opportunity to respond and potentially permits a union to collect signatures without the employer’s knowledge.

Business groups have opposed the EFCA with concerns that the election process would become public – a situation in which workers could be pressured by union supporters to vote in favor of unionization. Unions have argued that the secret-ballot process is flawed and subject to employer influence. In addition, if the parties cannot reach agreement within 120 days of negotiations, the EFCA would require that all the terms and conditions of the collective bargaining agreement be determined by a federal arbitrator (or panel), and the contract imposed by the arbitrator would be in place for two years. Thirdly, the EFCA poses more significant penalties than what the current law provides for certain unfair labor practices employers may engage in during a union organizing campaigns or contract negotiations. Regardless, some form of the current legislation is still anticipated to pass Congress.

Some action items employers may need to keep in mind include:

• Adopting a proactive employee relations practice.
• Providing union-authorization card training for employees.
• Communicating the company's complete compensation plan.
• Refining the employee hiring process.
• Revising the Employee Handbook to include dispute-resolution procedures and disciplinary / corrective action policies.
• Developing an employee recognition and rewards program.

.:.  Subscribe to HRAdvisor now >>