In 2009, nonunionized employers should pay particular attention to efforts to do away with secret-ballot union elections. If you wait until the EFCA is passed, you may find yourself unprepared.   If it becomes law next year, the Employee Free Choice Act (EFCA) could permanently change the way that unionization campaigns are waged in the United States and alter the balance of labor relations in the USA. There are Three Major Features of the EFCA, Card-Check, Mandatory Arbitration, and Enhanced Penalties for Unfair Labor Practices during Unionization Drives.

Card Check and the Potential Demise of Secret Ballot Elections
Under current law, to obtain certification as the exclusive collective bargaining representative of a group of employees, the National Labor Relations Act (NLRA) requires that a union first file a petition with the NLRB supported by proof, often in the form of authorization cards, that at least thirty percent of the employees in the proposed bargaining unit support the union. If the NLRB is satisfied with the proof, the Board supervises a secret ballot election by the employees. If the union wins a majority of the votes cast in the election, the NRLB certifies it as the bargaining unit’s exclusive representative, and the employer must bargain with the union over wages, benefits, etc. While not eliminating NRLB elections as a means of obtaining certification, the EFCA would change the landscape by permitting unions to skip the election step under certain conditions. Under the EFCA, the NLRB would be directed to develop procedures for the validation of the employees signed authorization cards. Therefore, if an NLRB-conducted card check concluded that a union has presented valid authorization cards from a majority of the proposed bargaining unit, the union would be certified without the step of an election.

Mandatory Arbitration
Currently, if an employer and labor representative reaches a genuine impasse after good-faith negotiations, the employer does not have to reach a collective bargaining agreement with the union. An employer can inform the union that its representation was ineffective to get a deal, he explained a choice that may result in a change of mind or a strike. The EFCA, by contrast, would force an arbitrator to write an agreement when an employer and union cannot reach a deal after 120 days, 90 days of negotiations and 30 days of mediation on a first contract. An arbitrator would wind up deciding such things as how to discipline employees and health care benefits, and the arbitrator’s decision would be binding and the arbitrator’s decision will be binding on the parties for a period of two years.

Enhanced Penalties During Unionization Drives
The EFCA’s final feature increases the penaltieson employers found to have discriminated against or to have discharged employees based on their support for unionization. Penalties under the bill would include back pay plus 2 times that amount as liquidated damages. In addition, employers found to have willfully or repeatedly violated the statute would be liable for a civil penalty of up to $20,000 for each separate violation. If EFCA becomes law, employers will need to assess how they respond to union organization drives and ensure that they do not cross the line from legal opposition activities to unfair labor practices.

It is possible that unions may have already started getting employee signatures on authorization cards. If you have any inkling (or even if you don’t), you might want to consider talking to your employees about the potential effect of signing authorization cards.