Organized labor spent a reported $450 million in the last election cycle supporting the candidacy of President Barack Obama and other candidates viewed as friendly to unions. In an interview published in the Wall Street Journal weekend edition on December 6, 2008, titled "Let's Share the Wealth," Andrew Stern, President of the Service Employees International Union, made clear that he intends to "hold [Mr. Obama] accountable" for promises made on the campaign trail. Atop that list of promises is the speedy passage of the Employee Free Choice Act ("EFCA"), which Mr. Stern and other labor leaders say they will press to have passed in the first hundred days of the Obama Administration. While opposition to EFCA has been mounting, and passage of the legislation is not necessarily guaranteed, there are steps employers should be taking now to prepare for the dramatic changes EFCA would make to enable unions to more easily organize workers.
First, a brief overview of the changes EFCA would make to existing law. The principal change, and the one that has garnered the most attention to date, is that EFCA would replace the current system of secret ballot elections supervised by the National Labor Relations Board ("NLRB") with a card-check system. Under EFCA, the NLRB would be required to certify a union as the exclusive representative of a group of employees if the union presents signed authorization cards from a majority of employees in an appropriate bargaining unit. (How and when challenges to the appropriateness of the unit are to be resolved is a detail not addressed by EFCA.) Indeed, as currently drafted, EFCA prohibits the Board from conducting an election if it is presented with authorization cards from a majority of employees in a particular unit. Of equal, if not greater importance, EFCA also calls for binding arbitration, under rules to be developed by the Federal Mediation and Conciliation Service to resolve first contracts that do not settle within 120 days. An EFCA arbitration panel will have authority to impose a first contract that lasts for two (2) years. Finally, EFCA provides for enhanced penalties for unfair labor practices committed during union organizing drives and first contract negotiations, including liquidated damages of two (2) times any amount awarded as back pay, and civil penalties of up to $20,000.
So what can employers do to prepare for EFCA? Number one – don't take passage of EFCA for granted. While EFCA easily passed the House, it failed to garner enough support to ward off a Republican filibuster in the Senate. Since then, opposition to EFCA has been mounting amid greater publicity. Even former Democratic presidential candidate and stalwart friend of Organized Labor, George McGovern, took a stand against EFCA in an August editorial calling the card check procedure for certifying unions "a disturbing and undemocratic overreach not in the interest of either management or labor." More recently, the U.S. Chamber of Commerce published a series of three white papers exposing the fallacies underlying labor's arguments in favor of EFCA, titled "Responding to Union Rhetoric: The Reality of the American Workplace." (http://www.uschamber.com/publications/reports/unionrhetoric) Employers can, and should, support the efforts of the Chamber of Commerce and other industry groups to oppose EFCA. Moreover, employers should voice their opposition to EFCA to elected representatives in the states where they do business, either directly or through industry organizations.
If EFCA does become law, it will not necessarily require every employer to be in a perpetual state of "campaigning" against an organizing drive that might be happening without their knowledge. However, there are steps employers should take in advance to ensure their readiness to address union activity. In particular, employers need to review and assess the adequacy of existing policies that may impact organizing activity, including no-solicitation rules, and rules governing access to employer facilities and use of employer equipment and property, including phones, computers, and e-mail systems. In addition, employers should evaluate how best to educate their employees about the drawbacks of unionization. At a minimum, employers should begin the process of educating employees, both supervisors and the rank and file, about the significance of authorization cards, and the legal consequences of signing one. More generally, supervisors need to be reminded to treat employees fairly and with respect. Supervisors also need to be taught how to spot organizing activity, and what they lawfully are permitted to do in response.
The bottom line is that there is still time for employers to make their opposition to EFCA known and to work for the defeat of this poorly-named and potentially damaging legislation. Even if it passes, employers are not powerless to address the increased organizing activity that will come in EFCA's wake. For more detailed information on what employers can do to prepare for EFCA, Cozen O'Connor's Labor and Employment Department is conducting a Breakfast Briefing on January 27, 2009 in Philadelphia. To view the invitation go to http://www.cozen.com/cozendocs/outgoing/invites/2009/Labor/Labor_EFCA.html.
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