The Employee Free Choice Act
Early next year, Congress is likely to consider major changes in Federal labor laws known as the Employee Free Choice Act (“EFCA”) which will make it much easier for unions to organize employees. Since 1935, the procedure for organizing has been for the union to get at least 30% of the employees to sign authorization cards. The union would present these cards to the NLRB, and about 45 days later the NLRB would conduct a secret ballot election among the employees. The union would become the bargaining representative only if a majority of the employees voted for the union in the secret ballot election.
In these campaigns, employers would often be unaware that the union was soliciting their employees to sign authorization cards. The employer would find out about the organizing campaign only when the NLRB notified the employer that an election was going to be held. The employer would then have about 45 days to explain to their employees why going union was unnecessary or unwise. Unions are pushing for EFCA because they claim that employers use the 45 day period not so much to educate or inform employees, but to intimidate employees from voting for union representation.
The EFCA will shorten the two step procedure described above into a one step procedure. The one step is for the union to obtain signed authorizations from a majority of the employees. Once the union does this, it becomes the bargaining representative of the employees. The secret ballot election will be eliminated, as will the 45 day period before a secret ballot election. This will make it substantially easier for unions to organize employees that presently operate without unions.
EFCA includes another major change. In the past, any union proposal in collective bargaining had to be agreed-to by the employer before it became part of the collective bargaining agreement. By threatening to strike, the union could persuade or threaten the employer into agreeing to proposals to which the employer might not otherwise agree. In making its decisions about bargaining, the employer had to balance the threat of a strike against the burden of wage increases, restrictive work rules, or the like.
That changes under EECA. Under EFCA the employer would have to bargain with the union for a month, the same as it did in the past. If an agreement has not been reached within that time, the terms of the contract – including wages and benefits -- will be decided by a neutral arbitrator. What criteria such neutral arbitrators will use to make those determinations are not yet clear.
EFCA has not yet become law. But if it does, unions are likely to substantially increase their efforts to organize employees that presently do not have union representation. Employers that want to remain non-union will have to become proactive about doing so. There are a number of steps that an employer can take, including supervisor training, employee education, and diffusing the types of situations that could fuel an organizing campaign. To be effective, these steps must be taken well in advance of any organizing campaign. In many instances, these measures can be a significant benefit to both employers and employees.