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Legal Updates

The Employee Free Choice Act is Coming. Get Ready.

Soon it will be dramatically easier for labor unions to organize employees.  Now that President-Elect Obama will be moving into the White House, there is little doubt that the Employee Free Choice Act (“EFCA”) will become law, and that it will significantly change the balance of power in labor-management relations.

This E-alert is excerpted from a White Paper that discusses: (i) key provisions of the EFCA and how they will change the National Labor Relations Act (“NLRA”) and the workplace; (ii) how the EFCA misses its mark, and how and why it should be changed; and, most urgently, (iii) what employers must start doing now to minimize the risk of being unionized without the protection of a secret ballot election to determine whether their employees truly want union representation.

I.          What Does The EFCA Mean?

Passage of the EFCA as currently drafted would mean that (a) unions could obtain the right to represent employees without having to win a secret ballot election, (b) arbitrators (and not companies and unions) would likely write many of the first collective bargaining agreements in the future, and (c) there will be more injunctions against unfair labor practices in the context of union organizing campaigns, as well as substantially increased penalties for violations during the time period prior to a first collective bargaining agreement.

The EFCA will permit unions to organize and represent employees based solely on signed authorization cards – i.e., without having to win a secret ballot election.  This should be of great concern to employers, because unions engage in high-pressure tactics to get employees to sign authorization cards. After the EFCA becomes law, signed union authorization cards from a majority of employees will be sufficient to lead straight to union negotiations – without a secret ballot election.

Also deeply troubling to employers is the EFCA’s provision permitting an arbitrator to decide the terms of the parties’ first collective bargaining agreement (“CBA”).  In essence, if the first CBA is not completed within 120 days following the commencement of bargaining, then the matter can be referred to an arbitrator who would decide the terms of, and effectively write, that first CBA, for a period of up to 2 years.  This would mean that many first CBAs will be written by an arbitrator following an adversarial proceeding.  This would radically change the dynamics of traditional labor-management relations.

Finally, the EFCA will also lead to more injunctions against unfair labor practices in the context of union organizing campaigns, and increased penalties if the National Labor Relations Board (“NLRB”) finds that an employer has discriminated against an employee either (a) while employees were seeking representation by a union, or (b) during the period after a union was recognized and before the first collective bargaining contract was entered into.

II.        The EFCA Should Be Revised Before It Is Enacted

The EFCA should be changed to protect the secret ballot election and to allow parties a reasonable opportunity to negotiate first CBAs, while also addressing the problems that the EFCA is purportedly intended to address.  Those problems include extremely aggressive campaign tactics and negotiating tactics by employers.  Under the current (old) system, union election campaigns take months (or years) and can result in protracted litigation – sometimes as a strategy to impose costs and delay on the other side, or to manipulate the ballot count.  However, while the current system needs to be changed, we do not need to get rid of secret ballot elections, or impose an unreasonably short (120-day) time frame for negotiating first CBAs.

Eliminating the secret ballot election is dangerous and fundamentally wrong because unions campaign just as aggressively as employers.  Employees often sign authorization cards just to “get the union off my back.”  Given the hardball tactics by unions, the secret ballot election is absolutely essential to protecting the employees’ rights.  It is the only safe haven for employees.  No one is seriously suggesting that there is a flaw in secret ballot elections, so leave the secret ballot election alone.

The EFCA’s other major flaw is that it would provide for “interest arbitration” of first CBAs after only 120 days of unsuccessful negotiating.  Negotiating first contracts frequently takes more than a year, however.  Thus, this 120 day provision is neither reasonable nor in the parties’ best interests.  The process of negotiating the first CBA, in good faith, and reaching a successful conclusion is essential to giving the parties the chance to learn to work together successfully.  If instead the first negotiation ends in a “cram down” courtesy of an arbitrator, that opportunity will be lost.

In short, the EFCA should be revised to address the specific problems of the current system. If there were stiffer penalties and swifter enforcement with respect to unlawful tactics, then employers would engage in them less frequently.   Some alternatives are described in greater detail in the White Paper.

III.       What Employers Should Be Doing Now

Even the best-case scenario for employers means that they will soon be playing by a significantly different set of rules in the high-stakes game of union organizing.  So employers should make a plan, and act now.  For example, as described in the White Paper in great detail, employers should:

  • Evaluate compensation and benefits.
  • Conduct a wage and hour audit.
  • Audit worker classifications.
  • Evaluate senior executives, managers and front line supervisors.
  • Conduct employee surveys and/or 360-degree reviews.
  • Audit workplace safety.
  • Audit and address any unresolved workplace complaints.
  • Provide training to managers to educate them on relevant topics.
  • Provide training to employees and educate them about unions and the EFCA.
  • Gather information about relevant unions.
  • Develop and implement a comprehensive communications plan.

Employers should act now.  After the EFCA, it will be too late for employers who wait until they know that a union is trying to organize their employees.  By then, the union will have cards signed by more than 50% of the employees!


Request the complete White Paper:  If you would like to receive a copy of the complete White Paper, please contact Deb SanSoucie at or 978-623-0900.