Democrats in Congress have promised to pass the Employee Free Choice Act (EFCA) and, if elected, Senator Obama has promised to sign it. EFCA will amend the National Labor Relations Act (NLRA) to take away employees’ rights to secret ballot elections and allow union recognition by card checks only. EFCA will also require binding arbitration of first contracts after 120 days so that an arbitrator (not the employer) will set wages and benefits for the first two years of the relationship. Finally, EFCA stiffens penalties for employers who misstep during an organizing drive or a first contract negotiation.
Senator Obama and Democrats in Congress have also promised to get this bill passed early in 2009. This is the highest priority organized Labor has in its battle for new members. Whether the employees want to be members or not, peer pressure will get the cards signed.
As currently drafted, EFCA will provide:
EFCA will leave to the National Labor Relations Board (NLRB) many open questions, including:
A wide variety of important issues like these will be left to administrative action by a newly-constituted NLRB which will have three new members when a President Obama fills the existing three vacancies. Confirmation is guaranteed by a Democratic Senate.
EFCA will pose a significant threat to the rights of employees of virtually every private sector employer. However, some industries face greater pressures than others. Some of the specific industries which will be under siege once EFCA is signed into law: 1) Small businesses; 2) Industries that cannot be moved offshore; 3) “Hot industries” such as health care, communications, utilities and transportation which are already targets of organized labor; 4) Employers whose work force is partially organized; and 5) Employers with massed employees such as manufacturing and retail and service.
Card check systems in the United States and other countries are designed to make it easier for unions to organize employees. It will be much easier for unions to win if employees are denied their right to vote. Currently, unions in the U.S. may have 80 percent of cards signed going into a secret ballot election, yet they still lose half of the elections because it is a known fact that employees sign cards and then vote the way they want.
With a heritage labor relations practice that is second to none in its depth, flexibility and creativity, Baker Hostetler is in a unique position to assist employers faced with clandestine union organizing, dealing with the Labor Board in the regions and in Washington, D.C. over who should be in the bargaining unit, the abbreviated collective bargaining process, labor arbitration of the first contract, as well as strikes, picketing and other economic actions.
Baker Hostetler’s Labor Relations Team will proactively work with your company to help prevent unfair unionization in a post-EFCA America. There is an immediate need to put in place the required infrastructure so that your employees are not the first easily blindsided targets. Multi-faceted information and training, communication plans, flexibility, detailed knowledge of union tactics, as well as time proven strategies and respectability are why Baker Hostetler will help your company successfully navigate a new EFCA reality.
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