Employers Beware! The Employee 'Free Choice' Act ... Which is Anything But 'Free Choice'

Over the past several years, the percentage of organized labor in the private sector has steadily declined in the United States to less than 8 percent. Unfortunately for employers, this decline may come to a screeching halt, and the pendulum may begin to swing in the opposite direction with lightning speed. Organized labor has been able to re-focus, re-energize and mobilize strong support from major players within the United States Congress. In fact, on March 1, 2007, the U.S. House of Representatives passed "The Employee Free Choice Act" ("EFCA"), a bill that drastically changes all of the "rules of engagement" as employers know them, making it easier for unions to organize, and potentially imposing terms and conditions of employment that must be offered to employees. Equally disturbing, the EFCA will deny employees the right to vote by secret ballot after having an opportunity to learn all of the facts and consequences of unionization.

Currently, under the National Labor Relations Act ("NLRA"), a union attempts to obtain signed authorization cards from employees for the purpose of becoming the exclusive bargaining representative of the employees. The NLRA gives unions great leeway in the manner in which the union obtains these cards, even allowing a union to make promises the union knows it cannot keep. If a union obtains signed authorization cards from at least 30 percent of the employees within the proposed unit, it can petition the National Labor Relations Board, which will direct a secret ballot election to be held typically within 42 days of the filing of the union's petition. During that 42-day time period, the employer has the ability to campaign against the union and explain to its employees why the employer believes that the union is not in the employees' best interest. This process enables the employees to make an informed decision for purposes of voting in the secret ballot election. If a majority of the employees who vote in the election vote in favor of the union, the union is certified and becomes the exclusive bargaining representative of the employees. This triggers an obligation on the part of the employer to bargain in good faith with the union for purposes of entering into a collective bargaining agreement. Nonetheless, under the NLRA as currently drafted, an employer cannot be compelled to agree to any proposals. This is because, up until now, there has been a recognition that the employer has the right to determine what is in the company's best interest and what it can afford to provide to its employees in terms and conditions of employment.

The EFCA passed by the House and currently before the Senate proposes to amend the NLRA so as to eliminate the secret ballot election, and requires an employer to recognize a union solely on the basis of signed authorization cards from a majority of employees within the proposed unit. Notably, the proposed amendment does not address the manner in which the union obtains the authorization cards. Thus, unions can still obtain signatures by making promises they know they cannot keep. Moreover, by eliminating the secret ballot election, the amendment obliterates any protection of anonymity for an employee who opposes union organization, but signs an authorization card out of fear or to appease co-workers and union organizers who may be using unlawful threats, intimidation or other bullying tactics.

Perhaps more alarming, the EFCA proposes to amend the NLRA by requiring the parties to submit to mediation, and then binding arbitration, if a collective bargaining agreement cannot be reached after 90 days of bargaining. Thus, a third party will have the ability to dictate the terms and conditions of employment an employer provides.

Unfortunately, many employers were unaware that Congress was even considering the EFCA, and organized labor successfully lobbied the House of Representatives, which passed the bill 241 to 185. Because Democrats control the Senate, it is predicted that the bill will easily pass the Senate as well. While the president of the United States has intimated that he would veto the EFCA, organized labor continues its lobbying efforts to obtain the 67 votes needed to override a presidential veto. Nonetheless, even if the ECFA does not survive a presidential veto now, with the upcoming presidential election, the bill will likely be implemented if a Democrat is elected.

What can you do to protect your company and its employees?

1. It is now, more than ever, critical that employers implement proactive strategies to maintain a union-free environment. Employers, management and supervisors must be aware of the warning signs of union activity. Management and supervisors must be trained to distinguish fact from myth and to navigate the legal landmines that exist in effectuating a campaign to educate employees about the perils of union organizing.
2. It's not too late. It is critical that you immediately contact your congressmen and women and tell them to vote against the Employee Free Choice Act.
3. In the interim, we can help. Please contact us for assistance in assessing your organization's vulnerability to union organization activity and establishing an effective proactive strategy to maintain a union-free workplace.