EMPLOYER ALERT – PITFALLS OF EMPLOYEE FREE CHOICE ACT

Touted by organized labor as the solution to a struggling economy, the Employee Free Choice Act, if passed by Congress, will pave the way for rapid unionization of many workforces, large and small. For employers, there are some very troubling aspects of this legislation to consider.

Currently, in order for a workforce (or category of employees) to join a union, 30% of the employees must sign an authorization card. The National Labor Relations Board (“the NLRB”) then schedules an election and, after a reasonable period of time has passed for discussion and consideration by the workers, the election is held by secret ballot.

Under the new proposed law, however, there is no period for discussion, and no secret ballot election is held. Instead, once a majority (51%) of the employees signs an authorization card, the union is put in place. And stiff monetary penalties will be levied against an employer who “interferes” with the process.

Under the current system, once a union is established in a business, collective bargaining begins and continues until an agreement is reached. If negotiations break down, workers can strike. The company can then either negotiate further to bring them back, or permanently replace the striking employees. The employer cannot be forced to sign an agreement with terms it objects to, and the union cannot be forced to sign an agreement it objects to. Under the new legislation, however, if a collective bargaining agreement is not reached within 90 days, either party can request mediation. If mediation does not result in an agreement within the next 30 days, the issues are decided by an arbitration panel, whose decisions are mandatory for both the employer and the workers for up to two years. The issues decided by the arbitration panel can include wages, work hours, benefits, and other terms of employment. The employer is bound by that “agreement,” notwithstanding the inclusion of terms it never agreed to.

Another problem with the legislation is the total elimination of employee privacy. Under the current system, a worker who feels pressured by colleagues to sign an authorization card can still vote “no” in the secret ballot election. Under the “card check” mechanism of the proposed bill, once that worker signs the authorization card, his “vote” is cast.

This bill was passed by the House of Representatives last year, but died in the Senate under threat of veto by President Bush. President Obama has already indicated he will readily sign this bill into law if it is placed before him. In light of the support the legislation has received, it is likely it will be passed this year.

Although historically Florida has not been a union state and, for the most part, only large employers have had a unionized workforce, the prerequisite of “concerted action” to form a union requires only two employees in a place of business. Accordingly, this legislation poses concerns for all Florida employers, regardless of size.

Because Florida is a “right to work” state, an employee can get a job regardless of whether they have a union card. Once employed, they are not required to join the existing union at their worksite – the payment of union dues is not mandatory. But the terms and conditions of their employment will still be subject to whatever collective bargaining agreement is in place.