Anew bill, the Employee Free Choice
Act (EFCA) pending in Congress,
would make it much easier for employees to join unions, says Michael J.
Stief III, a partner in the Pittsburgh office of
Jackson Lewis LLP.
“It is important for business owners to
be aware of the legislation as the 2008
elections approach,” says Stief. “This is
likely to be a highly debated topic, and
business owners need to be educated on
the matter.”
Smart Business spoke with Stief about
what changes the proposed legislation
would bring and how these changes would
affect employers and employees.
How does the Employee Free Choice Act differ from current law?
EFCA is an attempt to change the existing law in three specific ways.
Under the current law, employers presented with signed union authorization
cards can require a secret ballot election
supervised by the National Labor Relations
Board (NLRB). This gives employees the
right to vote in complete privacy, free from
any coercion. EFCA would require an
employer to recognize a union as the collective bargaining representative of the
employees when a majority of those eligible employees have signed authorization
cards, regardless of the tactics used by
unions to get those cards signed.
Another provision of EFCA deals with
mandatory arbitration if a first contract
between an employer and a union is not
reached within 120 days. Currently, federal
labor law allows parties to negotiate in
good faith. Effectively, this proposal does
away with the give-and-take of collective
bargaining. EFCA allows an arbitrator to
step in and impose a contract no matter
how unreasonable the union’s demands
may have been.
The third change would increase the
penalties for violations of the law. As proposed in EFCA, the penalties would
change the basic purpose of the National
Labor Relations Act from remedial to punitive. These would include penalties of up to
$20,000 per violation.
How will these changes affect businesses?
If EFCA is signed into law, it makes every
employer in this country susceptible to
union organizing activities. If you have 10
employees and six of them sign union
authorization cards, you are unionized —
regardless of the tactics the union used to
get the cards signed. There is no election.
The bigger concern for employers is the
arbitration provision of this legislation.
First contracts take months, if not over a
year, to negotiate. Every single word needs
to be agreed to by both parties in such
agreements. This legislation would ultimately place the responsibility for setting
all of the terms and conditions of employment in the hands of an arbitrator who may
know nothing about the employer’s industry, profit margins and other business considerations. In reality, an arbitrator would
dictate how an employer is able to compete in the marketplace.
How will this act benefit unions?
Unions are using the EFCA as a tool to
help bolster their membership ranks, thus
increasing revenue they receive from members. Organized labor has been supporting
this type of legislation for years. Labor unions say EFCA is needed because the
secret ballot government-conducted election process under the NLRB is flawed and
that employers discriminate against employees who attempt to organize. That is
simply not true. This legislation is all about
making it easier to organize employees.
Why should employees be concerned?
First, there may be increased pressure for
employees to sign union authorization
cards. For example, today if an employee
signs a union authorization card because a
tremendous amount of pressure is applied
by coworkers or the union, that employee
has the right to change his or her mind in a
secret ballot, government-conducted election. That right would be taken away under
EFCA.
The other effect on employees deals with
the arbitration provision. It is risky in the
private sector to allow an outside arbitrator to set the terms and conditions of
employment for an employer. If this legislation passes, over time, I believe you will
find more employers looking to move their
operations abroad — which, in the long
run, is not good for employees.
What should employers be doing now?
No. 1, they need to get involved. Until
recently, businesses were unaware of this
legislation. Now that it is starting to get
some publicity, many people are very concerned about its provisions. Employers
need to contact their U.S. congressmen
and senators to voice their opposition to
this legislation.
Secondly, it is now more important for
employers to conduct a vulnerability
assessment. They must take a look at their
policies and procedures, their employee
involvement programs and communication vehicles in order to help foster a positive work environment that would make a
union, or any other outside third party,
irrelevant to their work force.
MICHAEL J. STIEF III is a partner in the Pittsburgh Office of
Jackson Lewis LLP. Reach him at [email protected] or
(412) 223-0138.