The Employee Free Choice Act: Unions Rising?
Now that President Obama has signed his first law into place, the Lilly Ledbetter Fair Pay Act, Congress will continue to move forward with other employment related bills. The Employee Free Choice Act (EFCA) is high on the agenda. The EFCA, as proposed, will allow the workplace to be unionized based on signed cards, and not through secret ballot elections. Once the union organizers obtain 50% of the work forces' signatures, that will be sufficient to unionize that workplace.
Perhaps more importantly, the EFCA contains a mandatory contract requirement. At the present time, approximately 30% of newly elected unions are not successful in signing a contract. The EFCA provides that if a contract cannot be negotiated between the union and the employer, the first contract will be set by federal arbitrators.
Just this week, the Bureau of Labor Statistics reported that union membership rose by 428,000 members, or 12.4%, in 2008. This is the biggest gain since the government began compiling such statistics. This is the second year in a row that union membership has risen: in 2007, unions added 311,000 new members, or 12.1%. With the economy where it is right now, unions have a compelling argument that they are an important part of job security, and I anticipate union membership will rise in 2009, with or without the passage of the EFCA.
Another unintended consequence of unionization was highlighted in the recent Supreme Court decision of Locke v. Karass (US Supreme Court 1/21/09). In Locke, the Court held that the First Amendment permits a local union to charge nonmember employees represented by the union for national litigation expenses as long as the subject matter of the litigation is of a kind that would be chargeable if the litigation were local, and the charge is reciprocal in nature, i.e. that the contributing local would reasonably expect other locals to contribute in a similar manner.
Practice Pointers. With the increase in union membership, and the possible passage of the EFCA, employers should be proactive in communicating with the workforce. Emphasize the company's' strengths. Review the history of the company with employees. If there are any weaknesses (lower pay, benefits, etc.), work on resolving these issues through compromise. Educate management and employees about how unions really work, and dispel any myths. Train supervisors to be on the lookout for signs of potential unionization, and report it to upper management immediately.
