Anew bill, the Employee Free Choice Act (EFCA) pending in Congress, would make it much easier for employees to join unions, says Michael J. Stief III, a partner in the Pittsburgh office of Jackson Lewis LLP.
“It is important for business owners to be aware of the legislation as the 2008 elections approach,” says Stief. “This is likely to be a highly debated topic, and business owners need to be educated on the matter.”
Smart Business spoke with Stief about what changes the proposed legislation would bring and how these changes would affect employers and employees.
How does the Employee Free Choice Act differ from current law?
EFCA is an attempt to change the existing law in three specific ways.
Under the current law, employers presented with signed union authorization cards can require a secret ballot election supervised by the National Labor Relations Board (NLRB). This gives employees the right to vote in complete privacy, free from any coercion. EFCA would require an employer to recognize a union as the collective bargaining representative of the employees when a majority of those eligible employees have signed authorization cards, regardless of the tactics used by unions to get those cards signed.
Another provision of EFCA deals with mandatory arbitration if a first contract between an employer and a union is not reached within 120 days. Currently, federal labor law allows parties to negotiate in good faith. Effectively, this proposal does away with the give-and-take of collective bargaining. EFCA allows an arbitrator to step in and impose a contract no matter how unreasonable the union’s demands may have been.
The third change would increase the penalties for violations of the law. As proposed in EFCA, the penalties would change the basic purpose of the National Labor Relations Act from remedial to punitive. These would include penalties of up to $20,000 per violation.
How will these changes affect businesses?
If EFCA is signed into law, it makes every employer in this country susceptible to union organizing activities. If you have 10 employees and six of them sign union authorization cards, you are unionized regardless of the tactics the union used to get the cards signed. There is no election.
The bigger concern for employers is the arbitration provision of this legislation. First contracts take months, if not over a year, to negotiate. Every single word needs to be agreed to by both parties in such agreements. This legislation would ultimately place the responsibility for setting all of the terms and conditions of employment in the hands of an arbitrator who may know nothing about the employer’s industry, profit margins and other business considerations. In reality, an arbitrator would dictate how an employer is able to compete in the marketplace.
How will this act benefit unions?
Unions are using the EFCA as a tool to help bolster their membership ranks, thus increasing revenue they receive from members. Organized labor has been supporting this type of legislation for years. Labor unions say EFCA is needed because the secret ballot government-conducted election process under the NLRB is flawed and that employers discriminate against employees who attempt to organize. That is simply not true. This legislation is all about making it easier to organize employees.
Why should employees be concerned?
First, there may be increased pressure for employees to sign union authorization cards. For example, today if an employee signs a union authorization card because a tremendous amount of pressure is applied by coworkers or the union, that employee has the right to change his or her mind in a secret ballot, government-conducted election. That right would be taken away under EFCA.
The other effect on employees deals with the arbitration provision. It is risky in the private sector to allow an outside arbitrator to set the terms and conditions of employment for an employer. If this legislation passes, over time, I believe you will find more employers looking to move their operations abroad which, in the long run, is not good for employees.
What should employers be doing now?
No. 1, they need to get involved. Until recently, businesses were unaware of this legislation. Now that it is starting to get some publicity, many people are very concerned about its provisions. Employers need to contact their U.S. congressmen and senators to voice their opposition to this legislation.
Secondly, it is now more important for employers to conduct a vulnerability assessment. They must take a look at their policies and procedures, their employee involvement programs and communication vehicles in order to help foster a positive work environment that would make a union, or any other outside third party, irrelevant to their work force.
MICHAEL J. STIEF III is a partner in the Pittsburgh Office of Jackson Lewis LLP. Reach him at email@example.com or (412) 223-0138.