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Employee Free Choice Act Officially Introduced in Congress

In March, Democrats introduced the Employee Free Choice Act (EFCA) in both Houses of Congress.The EFCA controversial legislation, which has been the subject of countless debate, would amend the National Labor Relations Act and make it easier and quicker for workers to unionize.

The EFCA would do away with the traditional practice of allowing employees to decide by secret ballot whether they wish to be represented by a union.  Instead, a union could attain representative status merely by persuading a majority of employees to sign authorization cards indicating their desire to unionize.  All of this could occur "below the radar" leaving the employer no opportunity to educate employees regarding the benefits of remaining union free. Once a union achieves representative status via this "card check" method, the proposed legislation would require the employer to begin bargaining with the union to reach agreement on a labor contract. If the employer and union fail to reach an agreement within a few months, an arbitrator would decide the terms of the agreement and force it upon the employer and employees for at least two years. The EFCA also provides for triple back pay if an employer unlawfully discharges or otherwise discriminates against an employee during a union organizing campaign or while contract negotiations or arbitration are taking place.

There is strong support in the House for the EFCA. The Senate is a somewhat different story because of the filibuster procedure only available in that chamber. There are currently 99 senators, with the winner of the disputed Minnesota election yet to be seated. As they did last year, the Republicans ran be expected to mount a filibuster, which can only be broken by a 3/5th cloture vote. Thus, 60 votes are necessary for the bill to actually come to a vote in the Senate. Last year's cloture vote was entirely on party lines, except for Arlen Specter of Pennsylvania, who has now become a Democrat. As a result of the 2008 elections, and Specter's defection, the Democrats now have 59 votes (57 plus Independents Bernie Sanders of Vermont and Joe Lieberman of Connecticut). Assuming that Al Franken ultimately prevails in the ongoing legal proceedings in Minnesota, that would give the Democrats 60 votes.

Although the Democrats are firmly in control of the Senate, and on the cusp of gaining the crucial 60th vote, the political climate has changed significantly due to the economic crisis.  At least eight Democratic senators have expressed reservations about the bill in its current form.The bill's sponsors are now working on changes to make the bill acceptable to those senators, and it is likely that some version of the EFCA will become law this year.

Accordingly, employers who hope to avoid unionization should begin taking action now, by dealing proactively with the new reality of the EFCA in the workplace. Employers should:

1) educate employees about the benefits of remaining union free and make sure that employees know that direct communications with their employer is a better approach to resolving issues than dealing with a third party;

2) communicate to employees about the meaning of authorization cards and inform them that they have no obligation to sign the cards;

3) have in place a lawful solicitation and distribution policy and make sure that only company information is posted on bulletin boards;

4) evaluate current supervisors and make certain they understand company policies and apply those policies uniformly, as employees are less likely to unionize when their supervisors are fair, respectful and approachable;

5) evaluate their pay and benefits package against comparable employers in the area.  It may even make sense to have counsel or a labor relations consultant conduct a vulnerability audit, to ensure that you have done everything possible to create a positive, and hopefully union-free, environment.

  • Partner

    Brent is a member of the Labor and Employment and Litigation Practice Groups. He has an extensive appellate practice, representing clients before the Kentucky Supreme Court, Kentucky Court of Appeals, United States Supreme ...



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