All Companies Need to Prepare NOW for the Employee Free Choice Act

16 January 2008 Publication
Authors: John F. Birmingham Jr Thomas C. Pence

Legal News Alert: Employment Law Update

The Employee Free Choice Act (EFCA), which makes it much easier for unions to organize employees, died in the Senate this year. However, if the Democrats have a successful election in November 2008, it is very likely this bill will become law.

If employers value the non-union status of some or all of their workforce, now is the time to prepare and strengthen the defenses against union organizing efforts.

Key provisions of the EFCA as passed by the House of Representatives in March 2007 would:

  • Establish a new “card check” procedure whereby the National Labor Relations Board would automatically certify a union without a secret ballot election based upon signed authorizations obtained by union organizers from the majority of employees in the bargaining unit.
  • Establish tight timelines for first contract negotiations. The employer would be required to begin bargaining within 10 days of a union request. Mediation could be requested after 90 days of negotiation and, if mediation fails to produce an agreement within 30 days, a government-appointed arbitrator would have the authority to bind the parties to a two-year contract.
  • Create more stringent monetary penalties and fines for unfair labor practices, including triple back-pay for illegally discharged employees and civil fines of up to $20,000 per violation of the National Labor Relations Act (NLRA).

What to Do Now to Prepare for the EFCA
It is imperative that companies begin to strengthen their defenses against union organizing. Under the EFCA’s processes, the first a company may know of organizing activity is when the union presents authorizations from the majority of employees. At that point, an employer will be forced to recognize the union and it will be too late to mount a defense. This is a very significant change from the 42-day period typically available to the employer after the union requests authorization and before an election is held.

Foley provides comprehensive union avoidance tools and advice aimed at ensuring the EFCA will not lead to unionization. Our services include:

  • Educating company leadership of the increased risk of unionization
  • Training supervisors and managers on what they need to know and do to prevent unionization
  • Advising employers on what can and cannot be done and said under current law
  • Auditing the labor and human resource environment to assess vulnerability and improve defenses and communication strategies
  • Developing policies that legally deter organizing efforts, including no solicitation/distribution policies

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