Now that the November 4 election is behind us, we know that Democrats will enjoy a majority in Congress for at least two years, and will have control of the White House for at least four years.  As of this writing, however, it is unclear whether there will be a 60-seat filibuster-proof majority in the Senate.  Nonetheless, it is likely that employers will be faced with the impact of the euphemistically named "Employee Free Choice Act" in 2009 and thereafter.

The EFCA, which no lesser Democrat than George McGovern has called "un-American," would require (1) union recognition based on a card check (effectively doing away with NLRB-supervised secret ballot elections); (2) an initial collective bargaining agreement to be settled through interest arbitration; and (3) punitive measures if an employer violates certain basic provisions of the National Labor Relations Act.  These are enormous statutory amendments which, if passed by the new Congress and signed by the new President (who committed to do so), will drastically change the organizing approach of unions, and quite possibly the status of employers who desire to remain union free.

In the past, unorganized employers who wished to remain so, and who encountered union organizational activity, often first noticed a union's presence on the scene when a petition seeking an election was filed with the NLRB.  While some unions made it their practice to file only if they had obtained authorization cards signed by well over 50 percent of the employees in an appropriate unit, only 30 percent was required for the filing of an NLRB election petition.  A campaign then followed the petition, with the employer stating its case and frequently prevailing in the election because many employees who had signed authorization cards had done so under pressure, real or imagined, or without being informed of all the pertinent facts.  When the employees were permitted to cast their ballot in the secrecy of the NLRB voting booth, following a two-sided campaign on the merits, they were able to vote their choice and often responded favorably to their employer's explanations why a union was not needed.

Employers who in the past had not learned of organizational activity until the union had signed up a majority with authorization cards will now find that they are required to negotiate immediately with a union.  And the union may very well engage in “surface” bargaining so as to obtain a first contract through the fiat of interest arbitration.  What, then, should employers do if they wish to remain union free under this likely new statutory regime?

In effect, the EFCA will require that an employer's campaigning occur at an earlier point, i.e., at a "preventative" stage, and that this campaigning must be ongoing and constant.  The only realistic chance of avoiding unionization (under circumstances where the majority of the employees really do not wish to be organized) is to fully explain the extreme import of signing a union authorization card to the employees in advance, and to tell them, factually, why they should choose not to do so.

At the same time, though, the risk of missteps has materially increased.  Under the EFCA, an employee allegedly terminated for engaging in protected union activity would be able to obtain back pay plus an additional two times back pay as liquidated damages.  Moreover, the NLRB could impose civil penalties against an employer found to have willfully or repeatedly violated the law of up to $20,000 for each violation.

It behooves employers who wish to remain union free to educate themselves about the impact of the mislabeled "Employee Free choice Act," should it become the law next year, and to seek counsel regarding steps that should (and should not) be taken in light of the new labor law environment American businesses will be operating in.

Thomas G. Kienbaum

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