Are You Prepared for Employee Free Choice?

Employers beware: the Employee Free Choice Act is almost here! This proposed law - known as EFCA - will bring about a profound change in the law and will make it much easier for unions to organize your workforce. It will make smaller employers more likely targets for organization. Now is the time to prepare for this significant change, before it is too late.

Under current law, a union cannot represent your employees without an election, unless you make the choice to voluntarily recognize the union. For more than a half-century, union representation elections have been conducted in the same manner as general political elections in the United States: by secret ballot. Indeed, the secret ballot election has unquestionably been a hallmark of our country's democratic traditions, and perhaps the ultimate symbol of political privacy. It has allowed voters to endorse social, political, and religious ideologies without fear that members of their community will learn of their beliefs and treat them differently as a result. In the United States, we have long recognized the secret ballot as the most reliable indicator of an individual's true intentions.

The EFCA, which was passed by the U.S. House of Representatives on March 1, 2007, by a margin of more than 60 votes, will abolish your employees' rights to a secret ballot election on the question of union representation. This is a historic piece of legislation, both for employers and employees. Although it died in the Senate in June of 2007, EFCA is expected to be revived and eventually enacted after President-elect Obama takes office. Although it is uncertain what the final version of EFCA will look like, it will undoubtedly include provisions like those in the 2007 legislation aimed at easing the union's path to representation of your employees and increasing the likelihood that your employees will "select" a union to bargain collectively for more favorable terms and conditions of employment.

For example, in the event that EFCA is enacted as it is currently written, the National Labor Relations Board will certify a union as the exclusive bargaining representative of your employees - without any sort of an election - if a majority of your employees simply sign "valid authorizations" that designate a labor organization as their bargaining representative. These "valid authorizations" are otherwise known as "authorization cards." The solicitation of signed authorization cards by unions has historically been tainted with extreme peer pressure and other acts of coercion. In fact, in 1969, the Supreme Court of the United States famously wrote the following in regards to whether authorization cards are a reliable indicator of an employee's true intentions:

"The unreliability of the cards is not dependent upon the possible use of misrepresentation and threats…It is inherent, as we have noted, in the absence of secrecy and in the natural inclination of most people to avoid stands which appear to be nonconformist and antagonistic to friends and fellow employees."

In 1983, the United States Court of Appeals for the Seventh Circuit echoed the Supreme Court's disdain for authorization cards by writing the following:

"Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back, since signing commits the worker to nothing (except that if enough workers sign, the employer may decide to recognize the union without an election)."

As scary as it may sound to be forced to deal with a union as your employees' exclusive bargaining representative simply as a result of authorization cards signed under pressure, you should perhaps be even more concerned about another critical component of EFCA as it is currently written: mandatory mediation and then arbitration of your initial collective bargaining agreement. The EFCA provides that in the event that your business cannot reach an agreement with your employees on the terms and conditions of their employment a mere 90 days after negotiations begin, the parties must then work with a mediator supplied by the Federal Mediation and Conciliation Service (FMCS) to reach a mutual agreement. If no agreement is reached within 30 days after the parties begin to work with the mediator, FMCS "shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by" FMCS. Ultimately, an independent arbitrator - which is basically a private judge - will issue a decision that will define the terms and conditions of your employees' employment. The arbitrator's decision will be final and binding on your business for a period of at least two years. In other words, the right to bargain will be taken out of the hands of the employer.

Regardless of your political beliefs, you should be alarmed by EFCA. If Congress takes away your employees' rights to cast secret ballots in favor of or against union representation, it will also be taking away your employees' rights to be free from coercion, peer pressure, and public scrutiny in the event that they are not in favor of union representation.

The enactment of EFCA does not mean, however, that it is a foregone conclusion that a union will be certified at your business. The good news is that your employees can be educated on both the significance of union authorization cards and the extent to which unions are lawfully permitted to infringe upon their lives and promote their cause. In addition, your supervisors can be trained to manage your employees appropriately in an effort to avoid a desire for union organization. With appropriate training, employees who oppose union representation will be armed with enough information to resist peer pressure and union coercion to sign authorization cards and counteract the union-friendly EFCA. Your business will be better prepared to provide a workplace in which employees know that they have no need for outside representation.

Be aware that unions are looking to obtain authorization cards before EFCA passes so that they can be ready to claim representation once the new law goes into effect. Do not put this issue on a back burner. The fire may be out of control before you even know that the match was struck.

If you have questions or if you would like to discuss some of your options to prepare for the Employee Free Choice Act, you may contact an Ice Miller labor and employment attorney.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.