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Employee Free Choice Act Officially Introduced in Congress

On Tuesday, March 10, 2009, Democrats introduced the Employee Free Choice Act (EFCA) in both Houses of Congress. The EFCA, 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.

As explained in previous e-alerts, 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 the 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 the 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 establish a labor contract setting forth terms and conditions of employment. If the employer and union fail to reach an agreement within a few months, arbitrators could decide the terms of the agreement and force it upon the employer for at least two years. Additionally, 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 during the period from certification of the union until a first contract is agreed upon or imposed by arbitration.

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 can 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. Last year, the cloture vote was entirely on party lines, except for Arlen Specter of Pennsylvania, who joined with the Democrats. As a result of the 2008 elections, the Democrats now have 58 votes (56 plus Independents Bernie Sanders of Vermont and Joe Lieberman of Connecticut), two shy of 60. Assuming that Al Franken ultimately prevails in the ongoing legal proceedings in Minnesota, that leaves the Democrats with 59, and Arlen Specter would provide the 60th vote. But, he is facing a formidable conservative challenger in the 2010 Pennsylvania Senate primary, leaving him vulnerable to defeat if he veers too far left, such as providing the vote necessary for passage of this controversial legislation. So, in its current form, the legislation may not become law. But, as we have seen with the recent budget negotiations, at least three Republicans (Specter, as well as Olympia Snowe and Susan Collins of Maine) may be amenable to a compromise, leaving a significant risk that something will be enacted.

Employers who hope to avoid unionization should begin taking action now, by dealing proactively with the new reality of the EFCA in the workplace. The first step employers should take is to educate employees about the benefits of remaining union free and make sure that employees know that direct communication with their employer is a better approach to resolving issues than dealing with a third party. Another way to be proactive is to communicate to employees about the meaning of authorization cards and inform them that they have no obligation to sign the cards. Employers should also have in place a lawful solicitation and distribution policy and make sure that only company information is posted on bulletin boards. Another step is to evaluate current supervisors and make certain that they understand company policies and apply those policies uniformly. Employees are less likely to unionize when their supervisors are fair, respectful and approachable. Lastly, you should be evaluating your pay and benefits package against comparable employers in your area. You may even wish to have a vulnerability audit conducted.

If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group


Even though the content of the above Greenebaum Doll & McDonald e-bulletin is primarily informative, state and federal law obligates us to inform you that this is an advertisement. You have received this advisory because you are a client or friend of the firm.

About Greenebaum Doll & McDonald PLLC
Greenebaum Doll & McDonald PLLC is a widely-respected business law firm with approximately 200 legal professionals in six offices, serving local, national and international clients in virtually every industry. A forward-thinking business law firm, Greenebaum is committed to the practice of Breakthrough Law®. 

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