One of the first pieces of labor legislation earmarked for action this spring is the Employee Free Choice Act ("EFCA"). In its current form the EFCA will make it much easier for unions to organize by eliminating the secret ballot election process. It also requires an arbitrator to impose a first contract if one cannot be negotiated within the EFCA's short deadlines. Both changes leave employers much more vulnerable to unionization and unmanageable mandatory union contracts.
The Current Unionization Process
Under the current law, if employees in a potential bargaining unit show that thirty percent or more of them want to join a specific union, then the National Labor Relations Board ("NLRB") holds a secret ballot election to determine whether a majority of the employees want the union. Typically, the employees, through their proposed union, demonstrate a thirty percent interest through signed union authorization cards or signature petition. The election is similar to a political election, with a voting booth, ballot, and registration sheet of eligible voters, and is generally held about 45 days after the showing of interest. At the polls, employees have the right to cast their ballot in secret either for or against the union – regardless of whether they signed a card or petition. The ballots are counted by the NLRB, and if the majority of the ballots are for the union (50 percent plus 1), then absent any successful challenges the union is certified.
Bye-Bye Secret Ballot Election
The EFCA in its current form eliminates the secret ballot election where the union gets a majority of the authorization cards signed by eligible employees. Once the union shows a majority, then, absent any successful challenges, the union is in without an election.
Mandatory Timelines To Negotiate And Settle Initial Contracts
In its current form, the EFCA also requires an employer to meet and start bargaining with the union within ten days of a written request to bargain unless the parties agree to extend that time. If the parties fail to agree on a collective bargaining agreement within ninety days of the bargaining start date, then either party can request a mediator. If after thirty days from the mediation request there is no contract, then an arbitrator is appointed to hear both sides and issue a binding two-year union contract on the parties.
Additional Remedies And Penalties
Other important aspects of the EFCA in its current form are:
- It extends the NLRB's application of injunctive relief to employer violations based upon threats, discrimination and any other unfair labor practices;
- It requires an award to an employee of back pay plus "two times that amount as liquidated damages" if the NLRB finds that an employer discriminated against an employee with regard to hire, tenure or any other term and condition of employment due to anti-union animus from the time "employees of the employer were seeking representation by a labor organization" until the initial contract was finalized.
- It fines an employer up to $20,000 for unlawful threats and discrimination.
The Likely Effect Of The EFCA
If passed in its present form, we predict that the EFCA will make employers extremely vulnerable to unionization and unwanted union contracts. Union organizing campaigns normally involve secret employee meetings and mailings, where misinformation and promises are dispensed freely in order to persuade employees to sign a union card or petition. Current labor law prohibits employers from "spying" or questioning non management employees about such activities, and most employers aren't even aware of the union's campaign until a few weeks before a petition for an election is filed. Fortunately, the time between the request for an election and the election gives employers an opportunity to present its side of the story, unmasking hollow union promises and lies. It also gives employees who were bullied or duped into signing cards, or who have decided to change their minds, an opportunity to cast a vote in private against the union.
Under the current version of the EFCA, the employer loses the opportunity to campaign between the election request and election because there is no election. Once the union can show that "50 percent plus 1" of employees in a proposed bargaining unit have signed a card, the union "is in" – absent any successful challenges to the cards or unit. The elimination of the election also takes away an employee's right to cast a ballot against the union in secret. Although the EFCA directs the NLRB to develop guidelines and procedures to control this "card check" method of union certification, it is unlikely that such regulations will fully preserve an employee's right to make an informed, deliberate decision about unionization that is free from the influences of union intimidation and misinformation.
What You Should Be Doing
Most employers that remain union free do not remain so by accident. Rather, successful companies establish and implement a comprehensive strategy before any signs of union activity arise. It is more important than ever to be proactive because you no longer have the time between the election request and the election to address the union's campaign. More now than ever, union avoidance training should be akin to harassment training – do not wait for the signs before educating the workforce. The cornerstone of a successful strategy includes:
- Train your managers and supervisors. Training should include identifying union signs, what management can and cannot say or do, and what managers must be saying and doing.
- Communicate personally and positively with your employees. The more face-to-face time the better. Email and phone calls are not sufficient substitutes.
- Identify issues fueling employee unhappiness and address them head on. Addressing problems doesn't necessarily mean doing what the employees request. If you decide not to change something, explain to employees the reason you did not take action.
- Sell your company. Continually educate employees on how their benefits, pay, and other terms and conditions rate favorably against the competition.
- Identify weak managers and supervisors. Invest in additional training and oversight to turn them into better managers.
- Discuss unionization with your employees. Develop a plan and talking points for managers and others and have them discuss openly and directly what unions are and why you believe the company would be better off without a union.
- Develop strategies to respond to hotspots of union activity.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.