The Employee Free Choice Act: Your Company A Union Company?

Earlier this year President Obama told more than 100 top labor officials “We will pass the Employee Free Choice Act.”  What does this mean for your company?

Under current law, in order for employees to unionize, the union needs 30 percent of the employees to sign cards seeking an election.  When the union gathers those cards, it gives them to the National Labor Relations Board (“NLRB”).  The NLRB then sets an election, typically approximately 40 days later.  During that time period, both the union and the employer have an opportunity to make their case for or against union membership to the employees.  Elections then proceed by secret ballot.  If the union wins, the union and the company try to agree upon a collective bargaining agreement.  Neither side is required to reach an agreement, just to negotiate in good faith.

The EFCA contains fundamental changes to this procedure: (1) if the union gets 50% plus one of the employees to sign union cards, there is no need for an election; the company must recognize the union.  This removes the employer’s ability to discuss the consequences of union membership with its employees resulting in a lack of informed employee choice; (2) since there is no election, there are no secret ballots, making employees susceptible to union pressure; (3) if the employer and the union do not reach an agreement within 90 days, they are required to go to mediation and then binding arbitration.  This means a third party – unaffiliated and unfamiliar with the employer – gets to decide the terms and conditions of employment, a decision historically within the purview of business judgment.

How can you protect your company from union organization? (1) include in your employee orientation materials and employee handbook a statement about the company’s view of unions; it may be your only opportunity to make your case – but be careful that it doesn’t become “evidence” of discriminatory intent later down the line; (2) promote people to management for their exceptional interpersonal skills, not because they are technically good at their job; (3) conduct employment satisfaction surveys; (4) address the concerns of your employees; (5) pay a fair wage so that when the employees decide whether to unionize and pay union dues, there is not much of a financial upside; (6) be aware of signs of union organization – secret meetings, an increase in employee complaints, increased inquiries regarding employee rights and grievance procedures; and (7) develop a plan for arbitration if your employees form a union – you won’t have time to do it after-the-fact.

Employees look to unions to help them achieve fair working conditions.  If your company is treating its employees in a lawful and fair manner, your risk of unionization decreases.  Be ready for the change in law and if your company does not treat its employees fairly or legally, be ready for an uprising.