The Employee Free Choice Act: The Union's Knocking at Your Workplace Door

Scott Silverman
April 7, 2009 — 2,118 views  
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Employers beware:  pending legislation will make it possible for unions to organize a workplace without ever having a union election and will allow arbitrators to set the terms and conditions of labor contracts if workers and management cannot agree.

The Employee Free Choice Act, co-sponsored by  President-Elect Obama. will likely be passed in some form in the near future.  This sweeping legislation would fundamentally alter how unions are organized in the American workplace and how union contracts are negotiated.  Employers need to prepare now for these changes.

The Changes in Store

The Employee Free Choice Act would drastically change both how workplaces are unionized and how contracts are entered. 

First, the bill would require that if a petition for union representation is filed, and a majority of employees have signed valid authorizations for  the union, a union will be certified as the collective bargaining representative for the employees without an election and without the employer ever having an opportunity to campaign against unionization.

This is a radical departure from current law. Currently, in the absence of unfair labor practices by an employer, a union can become the collective bargaining representative of employees only by:  (1) voluntary recognition; or (2) secret ballot elections.

An employer can voluntarily recognize a union and commence negotiations for a contract upon the union's demonstration of majority support.  Some employers have done so pursuant to card-check agreements where an employer agrees that it will recognize the union upon the union's submission of authorization cards signed by a majority of the employees. These cards state that the employee who executes it authorizes the union to represent him or her for purposes of collective bargaining.   Current law does not require that an employer enter into such agreements or recognize a union, even if the union has obtained a majority of authorization cards.  Rather, an employer has the absolute right to insist that there be a secret ballot election, and most employers exercise this right.

Alternatively, under current law, the union can submit a petition for an election to the National Labor Relations Board.  The petition must be supported by at authorization cards signed by least 30% of the employees.  If the petition is valid, the Board will schedule an election, typically for six or seven works after the petition is filed.  During the interval prior to the election, both the employer and the union are permitted, within certain guidelines, to campaign.  On the day of the election, each individual employee casts a ballot in a secret voting booth to either accept or reject the union.  If a majority votes for the union, it is certified as the collective bargaining representative.  If a majority rejects the union, the union cannot seek an election again for a year.

Under the Employee Free Choice Act, holding a secret ballot election after unions collect cards from a majority of workers would become illegal.  Effectively, then, the secret ballot election process would disappear, because unions typically do not file petitions for election unless they have a majority of cards.   

The Act also would radically alter the way in which contract terms are reached. Currently, if the workplace is unionized through either voluntarily election or secret ballot election, the employer is required to negotiate in good faith with the union for a contract.  There is no legal requirement that an employer accept any of the terms proposed by the union.  As long as the employer is meeting with the union in good faith, the employer cannot be forced to accept any provision that it deems undesirable.  If the union considers a term sufficiently vital, it has the right to call a strike to obtain that which it could not acquire at the bargaining table.

Under the Employee Free Choice Act, if the union represents employees through either voluntary recognition or certification following an election,  the employer must meet with the union within 10 days after receiving a request for collective bargaining from the newly certified or recognized union.  If the parties cannot reach agreement within 90 days, or such other period upon which the parties agree, then either party may notify the Federal Mediation and Conciliation Service and request mediation.  If after 30 days, or such other period as the parties agree, there is no agreement through mediation, the dispute will be referred to arbitration, and the arbitration panel will determine the initial contract terms for two years, unless the parties mutually agree to alter these terms. Accordingly,  an employer would have contract terms decided for it by an arbitration panel without its consent, and the union would not be forced to strike.

What Employers Can Do Now

If the Employee Free Choice Act becomes law, the card authorization process, as opposed to secret ballot elections in which employers may campaign, will become the almost exclusive avenue for unionization. Because card campaigns are often conducted in secret, it will be increasingly difficult for employers to counter union-organizing activity.

It is therefore vitally important for employers to have a proactive approach to employee relations.  Employers should remind employees of the benefits that they have without unions and educate employees on their right to discuss any issues with their supervisors or managers.  Happy employees are less likely to sign authorization cards.

Employers should also have solicitation and distribution policies in place.  For such policies to be lawful, however, they must exist prior to notice to the employer of a union-organizing drive.  The time to adopt such policies is now.

Akerman Senterfitt's labor and employment attorneys stand ready to provide expert assistance to you in drafting effective policies and procedures tailored to the needs of your workplace.

[email protected] (813-209-5091)

Scott Silverman


Scott Silverman has counseled management in all aspects of labor and employment for over 14 years. Scott's broad range of experience includes representation of employers in collective bargaining and contract negotiations, administrative proceedings, federal and state court litigation and arbitrations. Although he has handled the gamut of labor and employment issues in his career, Scott's practice has emphasized labor management relations, employment discrimination, non-compete/trade secret, wage and hour, and workers' compensation retaliation claims.