August 2008
Special Labor Day E-Alert
The Employee Free Choice Act
In March 2007, The Lowenbaum Partnership (“TLP”) forwarded an e-alert regarding the Employee Free Choice Act (“EFCA”) and the ramifications that legislation could have for the great majority of businesses in this country. In 2007, EFCA narrowly failed in the Senate because of a veto threat from the Bush White House. Due to the upcoming Presidential and Congressional elections it is not possible at this time to determine if the EFCA would be defeated if, as expected, it is passed by the House of Representatives in the 2009 legislative session.
All employers should become familiar with the EFCA because of the changing political environment and the new organizing and bargaining weapons unions will have if EFCA is enacted.
70 Years of Democratic Elections
EFCA will have a devastating effect on virtually all employers and, ironically, it will effectively eliminate employee “free choice” by eviscerating the secret ballot election process that the NLRB has effectively utilized for over 70 years.
As most of you know, under the National Labor Relations Act, a union must obtain a “showing of interest” from a minimum of 30% of the employees in an appropriate voting unit and submit that “showing of interest” to the NLRB at the time the union files a “Petition for Election.” Generally, within a mere 42 days from the filing of an election petition, the NLRB will conduct an election allowing employees to determine, by secret ballot, whether or not they want union representation. During the time period before the election, both the union and the company have the opportunity to explain the pros and cons of unionization. Once they receive a balanced explanation, many employees vote “NO” -- as dramatically illustrated by the fact that over 90% of private sector US employees are not represented by unions.
The Demise of the Secret Ballot Election
Under EFCA, however, a union that collects authorization cards from a majority of the employees that it wishes to represent simply presents those cards to the NLRB. If the cards are “authentic,” the NLRB will certify the union as the employees’ representative, and deny employees the democratic right to vote in a secret ballot election.
The Demise of Collective Bargaining
EFCA, however, goes beyond denying employees the democratic right to vote in a secret ballot election. EFCA also provides for mandatory “interest arbitration” when the parties reach an impasse in initial contract negotiations. If the parties cannot reach an agreement and mandatory mediation fails, EFCA invokes arbitration. The “impartial” arbitrator, who knows little or nothing about the intricacies of your business, would then decide the terms and conditions of the collective bargaining agreement.
EFCA also enhances the remedies available to the NLRB by expanding the ability of the agency to obtain injunctive relief and allows for treble damages and civil penalties, as opposed to the “make whole” remedy currently available under the National Labor Relations Act.
Act Now – Unions Are
Many states have enacted legislation covering public employees which is similar to EFCA. The experiences within those states are not surprising -- public sector union density has increased dramatically and “interest arbitration” has resulted in costly labor agreements which the public must bear.
Given the public sector experiences, private sector unions are anxiously preparing for the enactment of EFCA and are finalizing their organizing and interest arbitration strategies. Employers can no longer be “reactive” to union organizing. To the contrary, Employers must be “proactive” and begin to educate managers, supervisors and employees about the facts of unionization before the union approaches your employees.
The Lowenbaum Partnership has a comprehensive educational and strategic plan in place to assist clients in proactively addressing this critically important issue.
To contact one of the lawyers at the Lowenbaum Partnership click here.
This E-Alert is intended as in informal summary of certain recent legislation, cases, rulings and other developments. This E-Alert does not constitute legal advice or a legal opinion and is not an adequate substitute for advice of counsel. This E-Alert is not intended to nor does it create an attorney-client relationship. The choice of a lawyer is an important decision and should not be based solely upon advertisements. If this E-Alert is deemed to be an advertisement please disregard this solicitation if you have already engaged a lawyer in connection with the legal matter referred to in this solicitation. You may wish to consult your lawyer or another lawyer instead of us. The exact nature of your legal situation will depend on many facts not known to us at this time. You should understand that the advice and information in this solicitation is general and that your own situation may vary. This statement is required by rule of the Supreme Court of Missouri.