How the Employee Free Choice Act Will Change Every Employer’s World

What should you know?

What can you do?

We introduced Ice Miller's weekly labor and employment newsletter, Informed Employer Briefing only a few weeks ago and the feedback we have been getting has been overwhelmingly positive. We know that you are flooded with emails, newsletters, journals, and other materials. Keeping up with this reading material is a matter of making choices. Our goal is to make sure that you choose the Informed Employer Briefing as a source of RELEVANT NEWS AND INFORMATION. We want the Informed Employer Briefing to be a source of information that gives your company a competitive edge.

This week, I want to turn to the news and make sure that you know exactly how the Employee Free Choice Act will change your world if it becomes law. I think that this law will be transformative in the workplace if it is ever signed by a President. Every employer must become informed about this bill. If you read this and are encouraged to write to your Congressman or Senator, so much the better.

What is the status of the Employee Free Choice Act? On June 26, 2007, its supporters fell only nine votes short of the 60 that they needed to cut off debate in the Senate and have a vote on this bill. The AFL-CIO says that passage of this law is its “Number One Legislative Goal.”

How will the law affect every employer if it passes?

1. Card check union elections will become the norm, rather than the exception. Currently, a union can force an NLRB-directed election if 30% of the employees sign union cards. Rather than holding an election where your employees vote by secret ballot (as they would now in a union election), the law states that a company MUST recognize and bargain with the Union as the employees’ exclusive representative if the Union collects signed union authorization cards from a simple majority (50% plus 1) of your employees.

2. If the company and the union can not reach an agreement on the terms of the first contract within 90 days, a federal mediator can be called in to assist the company and union in negotiating the contract.

3. If the mediator fails to bring the sides together on a contract, the union would have a right (as would the company, although it is inconceivable that a company would do this) to force a binding arbitration on the parties to establish the first contract. In other words, an arbitrator will actually determine the terms and conditions (including wages and benefits) of your employees’ employment. In addition, the results of this arbitration will bind the company and union for 2 years.

4. If the NLRB determines that the company willfully or repeatedly violate employees’ rights in a campaign or in connection with the first labor contract, civil penalties of up to $20,000 per violation can be sought. In addition, if it can show that the company unlawfully discriminated against an employee a back pay award to the employee can be tripled.

5. The law gives the NLRB greater latitude to seek injunctive relief (including simply if it has “reason to believe”) if a company discharges, threatens to discharge, or engages in conduct that significantly interferes with employee rights in a campaign or first contract.

What are the candidates for President saying about the law? It might be helpful for you to see what the major presidential candidates have reportedly said about the law. The major Democratic candidates have expressed their support of the law, while a majority of Republicans have stated their opposition.

I will leave it to you whether you direct your Internet browser to your elected representative’s website. If you are so inclined, you might just use the websites of the House of Representatives and the Senate to locate your Congressman’s or Senators’ email addresses so that you can express your opinion.

Michael Blickman is a partner and chairman of the Labor Practice Group at Ice Miller, focusing his practice on advising for-profit and not-for-profit employers in all aspects of employment, including employment discrimination, union organizing, student and faculty issues, and employment contracts, including non-compete matters.

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.