Employment Alerts

Employee Free Choice Act Introduced in Congress on March 10, 2009
The proposed legislation will be taken up by the Senate after its Easter recess.

The Employee Free Choice Act (EFCA) will easily be the most contentious piece of employment/labor legislation in the last fifty years.  In June, 2007, supporters fell 9 votes short of the 60 needed to limit debate in the Senate and bring final action on the bill.  After the November election, democrats are on the verge of having the 60 votes necessary to end any filibuster.

There are three basic components to the bill:

•  It will no longer be necessary for a secret ballot election to be conducted for a union to be certified as a collective bargaining representative.  Where a majority of employees and a unit appropriate for collective bargaining sign cards designating a union as their representative, the NLRB will certify the union as the representative. 

• Provisions of the statute establish a procedure utilizing mediation and arbitration which will ultimately result in an arbitration board settling disputes which will result in a collective bargaining agreement which will be in effect for two years. 

• The statute dramatically increases penalties imposed on employers for violating the act, including authorization of injunctive relief on a mandatory as opposed to a discretionary basis. 

The most troubling aspect of EFCA to employers with respect to the selection of a collective bargaining representative is the elimination of the secret ballot election.  Employers are concerned that without NLRB oversight of the card signing process, employees may be subject to threats and intimidation to obtain authorization cards. 

The legislation also will fundamentally change the collective bargaining process.  Currently, when an employer and a union have bargained, in good faith, to an impasse, an employer can declare its final offer and implement that offer if not approved by the employees.  The final offer stays in effect until the impasse is broken and negotiations resume.  Under EFCA, after 90 days of negotiation and 30 days of mediation, either party can request arbitration which will result in a collective bargaining agreement imposed by an outside party, which will have limited familiarity with the parties and a particular business.

PREPARING FOR EFCA 

Actions which should be taken by employers are not radical; they are actions that are an integral part of maintaining an employment environment where employees feel there is no need for third party representation. 

Employers should consider the following:

• Conduct an HR audit.  Do reasons exist for employees to be interested in a union? Has the employer taken or is the company planning to take action which would cause employee concern?  Have the employer’s actions with respect to discipline and discharge been consistent or does the employer play favorites?  Are employees appreciated, and if so, how do they know? 

• Assess Communications. Are there effective communications to and from employees?  What are the issues that concern employees?  Is there a way for management and employees to express their concerns and suggestions?  Employees want to know what is going on with the company and do not like surprises.  Is there a valid no-solicitation/no distribution policy? 

•  Review Wages and Benefits.  How do the employer’s wages and benefits compare to other employers?  In particular, how does health insurance impact the employees? 

• Evaluate Supervision.  Are supervisors trained to deal with union organizing? Are supervisors aware of signals which indicate employees are discussing unions?  Supervisors need to understand the impact a union will have on them.  Are supervisors the problem? 

• Communicate the Employer’s Position on Unions.  Does the employer have a policy which sets out its belief that unions are not necessary, and has the company explained the reason for that belief?  Be prepared to educate the employees and to explain the significance of signing authorization cards.  

For further information, contact:
 John Holmquist, Esq.
jholmquist@foleymansfield.com
(248) 721-4200
Detroit, MI