Legal Affairs
Be aware and ready
How to prepare for possible passage of the Employee Free Choice Act
By Meredyth McKenzie
Smart Business St. Louis | November 2009
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Mary Beth Ortbals, Labor and employment practice group, Greensfelder, Hemker & Gale, P.C.
Dennis Collins, Chair, labor, and employment, practice group, Greensfelder, Hemker & Gale, P.C.
Even if your company does not currently deal with unions, passage of the Employee Free Choice Act could have a negative impact on your business.
The EFCA would amend the National Labor Relations Act, changing the way in which companies are unionized and requiring a new strategy for dealing with unionization and employee relations. And because any business with two or more workers can be unionized, you could be subject to the requirements of the bill should it pass.
“The EFCA was initiated to make organizing easier,” says Mary Beth Ortbals, a member of the labor and employment practice group at Greensfelder, Hemker & Gale, P.C. “Disadvantages of it include the elimination of secret ballots, an expedited election process and binding arbitration in the event that both parties are unable to reach an agreement.”
In preparation for the bill’s possible passage, you need to stress communicating with your employees now to educate them about your position on unions.
“You need to establish a union avoidance plan before the Act is voted on,” says Dennis Collins, chair of the labor and employment practice group at Greensfelder, Hemker & Gale, P.C. “You need to communicate to employees your position on unionization and the potential risk factors in advance of a union organizing campaign.”
Smart Business spoke with Ortbals and Collins about the Employee Free Choice Act and how to prepare for its possible passage.
What is the Employee Free Choice Act?
The proposed act has three provisions. The first authorizes a card check procedure, where a union can be certified without a secret ballot election if 51 percent of workers sign authorization cards supporting the union. There may be a compromise bill to retain the secret ballot election, but this would require quick elections and mandatory arbitration.
The proposed act also puts further restraints on businesses, with triple back pay to employees who are discriminated against or terminated while involved in union organizing activities or in the time leading up to the first union contract. It also imposes penalties — up to $20,000 per incident — on employers that engage in willful or repeated unfair labor practices.
It takes away the rights of the company and the union to agree or not agree to collective bargaining agreement provisions if the first labor contract is not reached within 120 days from the start of bargaining. Instead, an arbitrator will establish matters such as wages and benefits for the first contract, which will be in effect for two years. You then will no longer be able to say no to the demands of the union.
