Unions Ahead, Unions Ahead, Beware: The Employee Free Choice Act.
The unions who supported and helped elect President Elect Obama and the Democratic Party have long indicated their number one priority is enactment of the Employee Free Choice Act (EFCA). Most experts are predicting the passage of the EFCA during the first six months of the new administration, particularly since the Democrats control both the House and Senate. Employers will need to be prepared for the EFCA, otherwise they will wake up one morning, and find their workforce is unionized. Moreover, after a 120 days, they will find that a collective bargaining agreement will be imposed by an arbitrator, if the employer has not agreed to one.
The key element of the EFCA is that a union can obtain recognition as the employees’ representative by merely obtaining 50% of the workers to sign a “card check” in favor of the union, thus eliminating the need for a secret ballot. Current law allows unions to force an election by having 50% of the workers sign card checks, but the Employer can then campaign against the union, and ultimately the workers then vote by secret ballot. The EFCA will change all that – once the union gets 50% of the card checks signed, they are in. In the real world, this is an enormous difference. It is one thing to have co-workers go to an employee’s home and confront him and brow beat him into signing a union card – “come on Joe, everyone is for the union, do you want to me know as the one guy who would not sign the union card?” It is another thing for a union to win a secret ballot election, particularly after the employer has had a chance to campaign against the union – educating the workers on the problems with unions.
History has shown that unions often obtain 50% of card checks to require an election and then often they lose the secret election.
The EFCA will change all that. Instead, once the union gets 50% of the employees to sign cards, the employees are then unionized. Thus, employers will not have an opportunity to campaign against the union, but rather may be surprised to wake up one morning to find their workers are unionized.
A second important provision in the EFCA is that if the union and employer can not agree on a collective bargaining agreement (“CBA”) within 120 days, an arbitrator will impose a CBA through binding arbitration. Thus, 120 days after waking up to find a unionized work force, the employer will find it is faced with binding arbitration which will impose a CBA on it.
Thus, if the EFCA is passed, employers will thus not want to wait until a union has approached it with signed cards, to start its anti-union campaign. Rather, employers will have to continually be on the lookout for union activity, and to constantly remind workers why a union is not needed at their workplace. Employer will also need to implement safeguards against aggressive union organizing tactics, and to work at creating an optimal work environment so workers do not feel a need for a union.
Finally, of note, EFCA dramatically increases penalties against employers for certain unfair labor practices.
