Employee Free Choice Act Presents Significant Threat to Union-Free Workplaces

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<strong>Philadelphia &mdash; April 16</strong><br />Organized labor is devoting substantial resources to supporting candidates in the upcoming elections who will advance passage of the Employee Free Choice Act (EFCA). If adopted, the legislation would mark the most significant changes in American labor law in decades, according to Pepper Hamilton, a multi-practice law firm. <br /><br />&ldquo;EFCA poses a significant threat to union-free employers,&rdquo; said Jonathan Kane, chairman of Pepper Hamilton&rsquo;s Labor and Employment Group, which represents management in employment-related claims and counsels employers on employment policies and practices.<br /><br />&ldquo;Companies should mobilize to fight efforts to make EFCA the law of the land. Otherwise, they may well find themselves being forced to bargain with a union even though no union-organizing election was ever held,&rdquo; said Kane. <br /><br />Employers must understand what EFCA&rsquo;s passage would mean and what they can do now to ensure union organizers do not target their employees, according to Kane.<br /><br />Under the National Labor Relations Act (NLRA), unions attempt to organize workers through a union organizing vote and then bargain collectively with employers afterward if they are successful. Through union-organizing elections, employees can decide in the privacy of a voting booth whether or not they want to be represented by a union.<br /><br />EFCA would allow a card-check campaign as one way for employees to decide if they want to be represented by a union. The National Labor Relations Board (NLRB) could certify a union as an employee unit&rsquo;s exclusive bargaining representative after a union convinces enough employees to sign union-authorization cards. <br /><br />&ldquo;EFCA would significantly undermine elections as the way to bring a union on board,&rdquo; said Kane. &ldquo;EFCA would also force employers to negotiate the first contract in a hostile mediation and arbitration environment.<br /><br />&ldquo;What&rsquo;s more, EFCA would allow a union to demand that the employer participate in mandatory arbitration for the first contract. That could precipitate disastrous economic consequences,&rdquo; said Kane.<br /><br /><strong>EFCA Would Encourage Coercive Card-Check Campaigns</strong><br />If EFCA becomes law, authorization cards will become a much more important tool for union organizers than certification of an election. &ldquo;Now, employees who sign authorization cards to demonstrate tentative union support can still vote against a union when they cast their ballots in an election. That would change under EFCA. An employee who signs such a card will, in essence, be casting a public vote for the union that cannot be changed,&rdquo; said Kane.<br /><br />&ldquo;Employees who don&rsquo;t want a union to represent their interests may face subtle, or even explicit, union intimidation, since they won&rsquo;t make their decision in secret,&rdquo; Kane added.<br /><br />Kane said that secretive card checks among union protagonists would also &ldquo;eliminate the concept of &lsquo;an informed electorate&rsquo; that is so key to democracy.&rdquo; <br /><br /><strong>EFCA Would Impose Mandatory Arbitration</strong><br />EFCA would make wholesale revisions to the ways companies and unions negotiate all of their first contracts. As proposed, it would require the employer to meet and begin collective bargaining with the union within 10 days of receiving an appropriate bargaining demand.<br /><br />The employer and union then have just 90 days to agree on a first contract. If they can&rsquo;t, either party can request mediation with the Federal Mediation and Conciliation Service (FMCS). Once a union or employer seeks mediation, the FMCS has 30 days to resolve all of the parties&rsquo; contract negotiation disputes. &ldquo;Simply put, that is an unrealistic amount of time to resolve all outstanding first-contract issues,&rdquo; said Kane. <br /><br />The next step would be arbitration. An arbitration panel has an unspecified period of time to make a decision. Once it has made that decision, however, the parties are bound for two years. <br /><br />&ldquo;Mandatory arbitration of first-contract disputes marks a radical departure from current law. Now, the NLRA leaves to the union and employer the difficult work of negotiating and arriving at key terms and conditions of their collective bargaining agreement, without the government imposing specific contract provisions,&rdquo; Kane said. <br /><br />&ldquo;If adopted, EFCA would reflect the government&rsquo;s clear support of the union in first-contract negotiations, rather than merely providing a neutral bargaining framework for both parties, and would give arbitrators unprecedented power to impose economic restrictions on individual employers,&rdquo; said Kane. <br /><br />Kane added, &ldquo;The mandatory arbitration requirement is a clever strategy by unions. They know that card signing is not indicative of true employee support, and without true employee support, they do not have the economic power to bargain a viable first contract. The EFCA will mandate that first contract.&rdquo; <br /><br /><strong>Additional Penalties for Employers</strong><br />EFCA would impose additional penalties on employers that commit certain unfair labor practices. For instance, if an employer commits an unfair labor practice during the period of time between union certification and agreement on a contract, the NLRB could award treble back-pay damages to affected employees, as well as assess a civil penalty of up to $20,000 for each violation. &ldquo;The practical effect on employers would be to force them to choose between bargaining with a union and a possible punitive penalty,&rdquo; Kane added.<br /><br /><strong>What Employers Should Do</strong><br />&ldquo;The best approach is to make sure your workforce is generally satisfied. Happy employees are far harder to organize than unhappy employees. Take your employees&rsquo; pulse using surveys, feedback systems and audit teams,&rdquo; Kane said. <br /><br />&ldquo;You should also implement management training and develop communication and problem-solving systems to highlight the risks of union representation. It is your frontline management team that will first see union organizing efforts. Make sure they recognize it for the threat it is. Then get proactive by calling in experienced counsel to guide your actions during a union drive,&rdquo; said Kane. <br />

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