The Employee Free Choice Act: Unions Are Knocking at Your Workplace Door

Labor and Employment AkerAlert Law NOVEMBER 2008 18, The Employee Free Choice Act: Unions Are Knocking at Your Workplace Door

Employers beware: pending legislation An employer can voluntarily recognize representative. If a majority rejects the union, will make it possible for unions to organize a union and commence negotiations for a the union cannot seek an election again for a workplace without ever having a union contract upon the union’s demonstration of a year. election and will allow arbitrators to set the majority support. Some employers have done Under the Employee Free Choice Act, terms and conditions of labor contracts if so pursuant to card-check agreements where holding a secret ballot election after workers and management cannot agree. an employer agrees that it will recognize unions collect cards from a majority The Employee Free Choice Act, co- the union upon the union’s submission of of workers would become illegal. sponsored by President-Elect Obama,. authorization cards signed by a majority of Effectively, then, the secret ballot will likely be passed in some form in the the employees. These cards state that the election process would disappear, near future. This sweeping legislation employee who executes it authorizes the because unions typically do not file petitions would fundamentally alter how unions union to represent him or her for purposes for election unless they have a majority of are organized in the American workplace of collective bargaining. Current law does cards. and how union contracts are negotiated. not require that an employer enter into The Act also would radically alter Employers need to prepare now for these such agreements or recognize a union, the way in which contract terms are changes. even if the union has obtained a majority of reached. Currently, if the workplace is authorization cards. Rather, an employer The Changes in Store unionized voluntarily or through a secret has the absolute right to insist that ballot election, then the employer is required The Employee Free Choice Act would there be a secret ballot election, and to negotiate in good faith with the union for drastically change both how workplaces are most employers exercise this right. a contract. There is no legal requirement unionized and how contracts are entered. Alternatively, under current law, the union that an employer accept any of the First, the bill would require that if a can submit a petition for an election to the terms proposed by the union. As long petition for union representation is filed, National Labor Relations Board. The petition as the employer is meeting with the union and a majority of employees have signed must be supported by authorization cards in good faith, the employer cannot be valid authorizations for the union, a union signed by at least 30% of the employees. If forced to accept any provision that it deems will be certified as the collective bargaining the petition is valid, the Board will schedule undesirable. If the union considers a term representative for the employees without an election, typically for six or seven weeks sufficiently vital, it has the right to call a strike an election and without the employer after the petition is filed.Currently, during to obtain that which it could not acquire at ever having an opportunity to campaign the interval prior to the election, the bargaining table. against unionization. both the employer and the union are Under the Employee Free Choice Act, This is a radical departure from current permitted, within certain guidelines, if the union is recognized or certified, law. Currently, in the absence of unfair labor to campaign. On the day of the election, the employer must meet with the union practices by an employer, a union can be- each individual employee casts a ballot in a within 10 days after receiving a request come the collective bargaining representative secret voting booth to either accept or reject for collective bargaining from the newly of employees only by: (1) voluntary recogni- the union. If a majority votes for the union, certified or recognized union. If the parties tion; or (2) secret ballot elections. it is certified as the collective bargaining cannot reach agreement within 90 days, or

© Copyright 2008 Akerman Senterfitt. All Rights Reserved Akerman Senterfitt Labor and Employment Law Update November 18, 2008 such other period upon which the parties What Employers Can Do Now Employers should also have solicitation agree, then either party may notify the and distribution policies in place. Employers If the Employee Free Choice Act becomes Federal Mediation and Conciliation Service may restrict union solicitation to non- law, the card authorization process, as and request mediation. If after 30 days, or working time and distribution of union opposed to secret ballot elections in which such other period as the parties agree, there literature to non-working time in non- employers may campaign, will become the is no agreement through mediation, the working areas, as long as the union is not almost exclusive avenue for unionization. dispute will be referred to arbitration, and subjected to discriminatory application of Because card campaigns are often conducted the arbitration panel will determine such policies. For such policies to be lawful, in secret, it will be increasingly difficult for the initial contract terms for two years, however, they must exist prior to notice to employers to counter union-organizing unless the parties mutually agree to alter the employer of a union-organizing drive. activity. these terms. Accordingly, an employer It is therefore vitally important for would have contract terms decided for Akerman Senterfitt’s labor and employment employers to have a proactive approach to attorneys stand ready to provide experienced it by an arbitration panel without its employee relations. Employers should remind assistance to you in drafting effective policies consent, and the union cannot be forced employees of the benefits that they have and procedures tailored to the needs of your to strike. workplace. [email protected] without unions and educate employees on 813.209.5091 their right to discuss any issues with their supervisors or managers. Happy employees are less likely to sign authorization cards.

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This client alert, published by the Labor & Employment Group of Akerman Senterfitt, with offices in Florida, California, New York, Virginia, Wisconsin and the District of Columbia, is intended to inform firm clients and friends about legal developments in the areas of labor and employment law, including recent decisions of various courts and administrative bodies. Nothing in this publication should be construed as legal advice or a legal opinion, and readers should not act upon the information contained in this publication without seeking the advice of legal counsel.