The Employee Free Choice Act (EFCA) — also known as the Card Check Bill (H.R. 800, S. 1041) — would make it much easier for employees to organize in the United States. Passing it in 2009 is widely speculated to be a top priority of organized labor, which has amassed significant resources to do so.
“The EFCA would amend the National Labor Relations Act, the federal law that generally governs labor matters,” says Todd Sarver, member of the business department, labor and employment litigation, McDonald Hopkins LLC.
“The legislation has been presented in 2003, 2005 and 2007, when it came close to passing. Because this is an election year, there is an extremely heightened sensitivity now to it passing. The best thing companies can do now is be proactive with their employees. Treat them fairly and consistently. Make sure they are educated as to all the benefits they currently enjoy working for your company.”
Smart Business spoke to Sarver about what the potential coming changes will mean for employers and how they can begin to prepare.
What are the prospects for the EFCA passing next year?
In 2007, the House passed it by a vote of 241 to 185. After that, it got held up in a Senate subcommittee. However, organized labor is very committed to this legislation and continues to commit resources to getting it passed. In fact, the AFL-CIO has committed one million members to urge representatives to pass the legislation after the elections this year.
On the other side of the coin, the U.S. Chamber of Commerce strongly opposes the legislation, which it says will ‘upend decades of settled labor law in order to give organized labor an unfair advantage in union organizing, at the expense of both employees and employers.’
The Chamber has countered by launching its own Workforce Freedom Initiative and ‘card check petition.’ The issues are being debated fiercely on both sides, but organized labor backed candidates who supported the EFCA for the 2008 elections and, if elected, those representatives will be expected to vote for the legislation.
How would it change current U.S. labor law?
Currently, there are two ways employees can become represented. The first is by voluntary recognition. Under this scenario, a union that has acquired more than 50 percent of signatures in a bargaining unit can then go to the employer and claim representation, the employer can agree, and then the two sides begin bargaining. The much more common scenario is that when a union obtains at least 30 percent of signatures of the bargaining unit, it then files a petition with National Labor Relations Board to represent those employees. The board conducts a secret ballot election from there.
The EFCA, if it becomes law in its current form, would create an ‘involuntary recognition’ scenario. The union would be able to be certified the moment it collected more than 50 percent of signed authorization cards. Once the National Labor Relations Board recognized the union, the collective bargaining process would begin immediately. The parties would have 90 days to reach agreement after bargaining began. After that, a mediator would assist for 30 days and if agreement were still not reached, a third-party arbitration panel would make decisions as to what terms and conditions would apply during the first two years. The EFCA also would add liquidated damages for successful claims by individuals terminated for exercising their rights.
How would such changes affect employers?
With the way the secret ballot process works now, there is generally a 42-day period until an election occurs. During this time, the employer can educate the employees as to what organizing will mean for the company and its employees. Under EFCA, the education process is absent and the employees will only get the union’s perspective. In addition, if the bargaining process is unsuccessful in the given time frame, a third party (arbitrators) — who has no knowledge of the company — might end up making fundamental management decisions in many areas including overtime, job postings, outsourcing, etc.
Moreover, the 90- to 120-day time frame to bargain a first contract is wholly unreasonable — it often takes approximately a year to achieve a first contract. As for costs, it is difficult to quantify the cost of union versus nonunion. It is generally estimated that costs are 20 percent greater for union companies. Part of that is because resources are diverted to areas such as collective bargaining, grievances, arbitration hearings, etc.
What can employers do in response to such legislation?
In addition to doing all the right things in regard to managing what you should be doing anyway, write to your representatives and senators to voice any opposition. Internally, be extremely aggressive on several fronts. Educate all your managers and supervisors to have firm but friendly policies in place with respect to employee relations and to consistently follow them.
Inconsistent administration of policies puts you at the highest risk for organization. Make yourself an unattractive target. The alternative could be third-party representation and, inevitably, reduced flexibility in how you manage your operations.
TODD SARVER is a member of the business department, labor and employment practice group, McDonald Hopkins LLC. Reach him at (614) 458-0042 or firstname.lastname@example.org.