The Battle Begins; EFCA Introduced in Congress

Representatives of organized labor and management have been vigorously lining up support for and against the proposed Employee Free Choice Act (EFCA), which will radically change labor law in the United States. Yesterday, supporters of this controversial bill introduced it in Congress. EFCA promises to be at the center of political debate over the next several months, and many are reporting that passage will depend on a small umber of senators who remain undecided, including Sen. Arlen Specter (R-Pa.). This advisory highlights the key provisions of EFCA and identifies things employers should be doing now to prepare for it.

As currently proposed, EFCA would change federal labor law by:

1. Requiring the National Labor Relations Board (NLRB) to certify a union as the representative of an employer's employees if a majority of the employees sign union authorization cards. Currently, a union can only use authorization cards to either ask the employer to voluntarily recognize the union, or to file a petition for a secret-ballot election with the NLRB, which election will be held at a later date, after both sides campaign for and against the union.
2. Requiring employers and unions to use an arbitrator to set binding contract terms if the parties cannot reach an agreement after 120 days. Currently, employers are not required to accept any particular terms or conditions — their only obligation is to bargain in good faith.
3. Providing stronger penalties against employers who unlawfully discharge or discriminate against employees involved in union organizing.

Because EFCA may pass in some form later this year, union-free employers should take steps now to prepare, including the following:

• Conduct Training. Ensure supervisors are aware of EFCA and the risks union authorization cards pose (cards signed now may be used after EFCA passes), and train supervisors to effectively and lawfully communicate with employees about unions.
• Identify and Correct Problems. Now is the time to determine if employees are unhappy and, therefore, might be interested in signing union cards. Where appropriate, survey employees and take steps to correct potential problems.
• Evaluate Potential Bargaining Units. Analyze which groups of employees could be pursued by unions and make a risk assessment as to what can or should be done to enlarge or shrink potential bargaining units to make it harder to organize them.
• Identify Supervisors. Supervisors cannot join unions and are the keys to communicating with employees regarding EFCA and unions. Therefore, employers should have a firm understanding of who the NLRB would consider to be supervisors and take steps as needed to reduce ambiguities or future disputes over this issue.

In short, now that the EFCA battle has been joined in Congress, many lobbyists, lawyers and human resource professionals will invest substantial time and effort over the next few months monitoring or becoming involved in the fierce political debate over EFCA. Prudent employers will also invest time preparing, by taking the steps outlined in this advisory.