The Employee Free Choice Act (EFCA)
Why Employers Should Pay Attention Now
The Employee Free Choice Act (EFCA) has drawn attention from employers, workers and unions because of the wide-reaching nature of the proposed changes to the National Labor Relations Act (NLRA), and because no organization is risk-free from its reach-even if unions have not been a concern previously. President Barack Obama indicated during his campaign that he would sign the EFCA into law if elected.
We believe our clients and employers should be aware of the implications of the proposed legislation particularly because, if and when enacted, it could have an immediate and long-term effect on your business. Many people believe the EFCA may lead to unionization even in cases where a large number of workers oppose being unionized. The bill may trigger an unprecedented surge in unionization at a significant cost to companies. Passage of the EFCA will make it easier and faster for workers to unionize by, among other things:
- Allowing a union to be certified after a majority of employees have signed union authorization cards—without an election. Thus, after majority status is achieved, there would be no secret ballot election process, and employers may not have the opportunity to provide information to employees about potential drawbacks of unionization before the union is established. This new process may also mean that a union could be established before an employer even hears about an organizing campaign.
- Requiring binding arbitration to determine the contract terms (including pay, benefits and/or work rules) for the employer and the union if the parties are unable to reach agreement within 120 days.
- Providing for significantly increased penalties including: (i) double back pay plus actual back pay if an employee is discharged or discriminated against during an organizing campaign or first-contract drive; (ii) penalties of up to $20,000 per violation for violations of the NLRA if the violations are willful or repeated; and (iii) expanded injunctive relief against employers.
Current Status: The EFCA passed in the House on March 1, 2007, but was filibustered by Senate Republicans in June of 2007. The EFCA will be re-introduced in the 2009 Congress, and President-elect Obama has indicated his support for the EFCA. Most commentators believe that some form of the EFCA will become law in 2009.
Action Needed: If you are interested in learning more about how you can take action now to protect your business from unionization, please call us today. We will be happy to review your situation and advise on the best course of action, including whether supervisory training would be beneficial to ensure that your organization remains union-free.
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NOTICE: This newsletter is a periodic publication of Winthrop & Weinstine, P.A., and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your legal counsel concerning your situation and any specific legal questions you may have.