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EFCA is Alive and Kickin’ with Mandatory Arbitration and Enhanced Employer Penalties

EFCABecause the “card check” provision of the proposed EFCA Senate bill has been dropped, several commentators considered EFCA all but dead.  However, with the “card check” provision eliminated, it is likely that the filibuster-proof majority of 60 Democrats in the Senate will get EFCA pushed through quickly.  What that means for employers of all sizes is that unions may be gearing up for massive organization drives.

Employers should be aware that the EFCA legislation still provides that the employer and union would be subject to mandatory arbitration if they fail to reach a first contract within 120 days of the start of bargaining.  Currently, both parties have only a duty to bargain in good faith; there is no requirement that they come to an agreement or that they seek arbitration if they fail to reach an agreement.

Moreover, the EFCA legislation provides for significant increases in the penalties against employers (but not unions) for unfair labor practices.  For example, under the current law, wrongfully discharged employees may be reinstated with back pay.  The NLRB can also order the employee to bargain in good faith and it can seek a contempt order if the employer continues to violate the NLRA.  In contrast, under the proposed EFCA legislation if an employee is wrongfully discharged, the employer could be ordered to reinstate the employee and pay three times the employee’s back pay. Also, repeated violations could result in $20,000 civil damages per violation. 

The longer the EFCA legislation is allowed to brew, the more pro-employee ideas seem to emerge from Congress.  Reports abound of potential EFCA amendments including:

  • Requiring elections to be conducted within 10 days after the union presents authorization cards from at least 30% of workers in an appropriate bargaining unit. In contrast, elections currently take place usually within 40-45 days of the petition.  During that period, employers are permitted to present their case against the union to employees.
  • Restricting employers’ ability to hold mandatory employee meetings so that the employer can explain its opinion about unionization.  Thus, employers would be severely limited in their ability to provide employees with their opinion about unions.
  • Requiring employers to permit unions to visit the workplace to talk to employees about unionization.  In contrast, under current law most employers can prohibit any outside organizations from entering their facilities to solicit, including unions.

Given the impending promise of increased union activity and the diminishing opportunities for employers to present their view of why unionization is undesirable, employers should immediately do everything possible to ensure that their workplaces are not vulnerable to union campaigns.  There are specific types of communications with employees in this regard that are permissible, but be careful.  It is not permissible to interrogate, engage in surveillance on or threaten employees who express an interest in union organizing.  Offering benefits or rewards to employees if they vote against a union is likewise not permitted.

Ultimately, the best method to stave off union organization is for employers should develop a pro-employee culture.  Employees who feel they have a say in the operation are less likely to feel inclined to join a union and lose that voice.  Effective and consistently enforced discipline and dispute resolution policies also provide employees with a more secure feeling that they will be treated in a predictable and fair manner.  A very unappealing component of union representation is the loss of one-on-one communication with management about things that are important to the employee.  Employers should do all they can to make that communication valuable to its workforce.

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