If the Employee Free Choice Act (EFCA)
becomes law, it would change the landscape of labor law as we know it. Some
also say that it could hinder the ability of
employers to remain competitive.
Generally speaking, the bill has been
favored by Democrats and opposed by
Republicans. On March 1, 2007, the U.S.
House of Representatives passed the bill.
On June 26, 2007, the highly contested legislation stalled in the U.S. Senate after failing to reach the 60 votes needed to cut off
debate. But the November 2008 elections
provided Democrats with a larger majority in the Senate. This year, should the bill
get through the upper house during the
111th Congress, President Barack Obama
has promised his support.
“The impact on employers would be
great,” says Mike Stief, a partner with a
specialty in labor and employment law at
Jackson Lewis LLP. “If passed, EFCA will
dictate a recently unionized employer’s
ability to compete in the marketplace.”
Smart Business talked to Stief about
how employers should cope with EFCA,
should it pass.
What are the provisions of EFCA?
One, it does away with the secret ballot
election process. Right now, employees
vote in secret ballot elections to determine if they want a union. Under EFCA,
once a majority of employees sign verifiable union authorization cards, then the
union is recognized without that secret
ballot election.
The second provision requires mandatory arbitration if a company and a new
union do not reach an agreement on a
contract within 120 days of negotiation
and mediation. The final component of
the act is the creation of increased penalties for employer violations.
Which of the provisions has the biggest
impact on employers?
The one that’s getting all the publicity is
doing away with the secret ballot election.
Employees normally are subjected to peer
pressure to sign union authorization
cards, but under current law, they can change their minds and secretly vote
against the union, if so inclined. Clearly,
however, the arbitration clause has bigger
potential impact on employers.
Under the current law, if a union represents a private sector company’s employees, the employer has the obligation to bargain in good faith. There’s no arbitration
and no specific time lines to reach an
agreement. Under EFCA, you would be
forced to get a contract done in the 90 days
or you go to nonbinding mediation with the
Federal Mediation & Conciliation Service
(FMCS). The problem is that virtually no
first contracts are negotiated in 90 days,
because every single word needs to be
agreed upon by both parties. Then, if the
FMCS is unable to mediate a solution within 30 days, you are forced into binding arbitration to set terms and conditions of
employment. This third-party arbitrator,
unfortunately, may not know anything
about your business and the economic
realities of the situation.
But isn’t EFCA good for employees?
There has never been a bill more mis-named in the history of the country. It should be called the Employee Forced
Choice Act. Unions claim they need it
because the current process is unfair
[under NLRB provisions], yet unions won
more than 60 percent of elections held
last year.
In reality, this bill is bad for employees.
If you have a union vote at a plant now,
every eligible employee gets the opportunity to vote, and the majority wins. But if
a union were going to organize under
EFCA, it might focus on the 50-percent-plus-one of the employees who were most
likely to unionize. That kind of approach
would have the effect of disenfranchising
the rest of the workers.
This bill has more to do with unions
rebuilding their membership ranks than
employee free choice. Union membership
is down to 7.5 percent of the private sector work force. If EFCA becomes law, the
only groups that benefit are the unions.
Should EFCA become law this year, what can
employers do?
Your hands are not tied. But you cannot
be reactive to union organizing. Rather,
you must be proactive and rethink your
whole approach to employee relations,
attempting to work one on one with
employees rather than being forced to
work through a third party — a union. To
create an issue-free work environment is
to take away that union threat.
Many employers think that they’re planting a seed if they discuss the topic of
unions with employees. On the contrary,
you need to proactively discuss the issue of
unions with your people, if EFCA passes.
Finally, conduct a vulnerability assessment. Find out what issues your employees might have, and clean them up before
any type of union actually starts. You can
conduct the assessment internally or hire
consultants or lawyers to help you.
There’s a lot you can do, but if you wait
to address some of these issues until a
push for unionization begins, it will be
too late.
MIKE STIEF is a partner with a specialty in labor and employment law with Jackson Lewis LLP. Reach him at (412) 232-0138 or
[email protected].
