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FMG Law Blog Line

Employee Free Choice Act Reintroduced In Congress

Posted on: March 11th, 2009

On Tuesday, the Employee Free Choice Act (“EFCA”) was reintroduced in Congress. The bill was sponsored by Senator Tom Harkin (D-MA) and Representative George Miller (D-CA), the House Education and Labor Committee Chair.  If passed, EFCA would dramatically change union practices in the United States in several ways, but there are two key issues employers should know about.

No More Secret Ballot Elections.  First, EFCA would change the union election process.  Under current law, union organizers must submit a petition to the National Labor Relations Board (“NLRB”) showing that at least 30 percent of employees have signed valid authorization cards designating the union as their bargaining representative.  The NLRB then conducts a secret-ballot election where employees vote whether or not they want to join the union.  If a majority of employees vote for the union, then the NLRB certifies the union as the bargaining representative for employees.  Under EFCA, this process would change so that the NLRB would be required to certify a union, without a secret-ballot election, if a majority of employees sign valid authorization cards designating the union as their bargaining representative.  This will eliminate the secret ballot process if unions can persuade enough employees to sign authorization cards and likely will result in the certification of more unions.

Mandatory Arbitration If No Agreement Is Reached.  Second, EFCA would change the way employers and unions reach an agreement.    The National Labor Relations Act currently does not require an employer and union to reach an agreement, and also does not allow the government to dictate the terms of a contract between the employer and a union.  Under EFCA, however, an employer and a newly-certified union would be required to begin bargaining within 10 days of the employer’s receipt of a request for bargaining from the union.  If the employer and union are not able to reach an agreement within 90 days, then either party may request mediation.  If the parties still are not able to reach an agreement within 30 days, then EFCA will require that the dispute be referred to an arbitration board, which will render a decision settling the dispute and setting terms of employment that will bind the employer and union for two years.  In other words, if an employer does not give in to union demands within 120 days, an outside, government-mandated arbitrator will determine wages, benefits, and other contract-related matters.

What Should Employers Do?  Supporters and opponents of EFCA are promising to fight hard over the bill.  Indeed, even before EFCA was reintroduced, Congressional Republicans preemptively introduced a bill named the Secret Ballot Protection Act, which would make it an unfair labor practice for a union to try to force an employer to recognize or bargain with a union if the union has not been selected by a majority of employees in a secret ballot election conducted by the NLRB.  Nonetheless, all indications at this point are that some form of EFCA will be passed.  As such, employers should educate managers now about how to recognize early warning signs of a union card signing drive and how to lawfully communicate with employees about the benefits of a union free workplace.  Employers also should consider publishing a lawful “union free” statement in their employee handbooks or other written policy statements.  Finally, employers also may consider educating employees about the benefits of a union free workplace so they are aware of the issues even before a union card signing drive is started.

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