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Employee Free Choice Act Compromise


Are you ready for a “quickie” union election? If not, your company must get ready.

Quickie Elections

Over the last couple of days, Senate Democrats have reportedly reached a deal that will result in a Senate vote this September (around Labor Day) on the EFCA. The controversial card check provision will be removed from the bill and replaced with a “quickie election” that will require the NLRB to conduct an election within 5 to 10 days from the date a petition is filed. Normally, elections are held approximately 45 days from the filing of a petition.

Consequently, under the compromise EFCA, employers will have precious little time to put together an effective counter-campaign if it waits until receiving notice of the petition to take action.

EFCA’s Radical Changes to Bargaining Remain in the Compromise Bill

What is, in our opinion, the most troubling provision of the EFCA for employers – the mandatory arbitration provision – remains in the compromise legislation. This provision states that when an employer and the union can't agree on a contract within 90 days, either party can ask for federal mediation. If after 30 days of mediation the parties still have not agreed on a contract, then the matter is submitted to binding arbitration and an arbitrator will decide all of the terms of the contract (e.g., wages, benefits, leave policies, etc.)!

Finally, the compromise EFCA proposes severe monetary penalties – up to $20,000.00 per occurrence and treble back-pay damages – against employers who commit unfair labor practices (but not unions).

What Can You Do Now?

You have two options: 1) do nothing; or 2) be proactive and become an “employer of choice.” Only the latter will help your company position itself to effectively deal with the new reality under the EFCA.

Employee Satisfaction Surveys: Employers need to be aware of current issues within the workplace. One way to accomplish this is through an employee opinion survey or employee attitude survey. A well-crafted survey can allow you to determine what some of the problems/issues are within the workplace. Once the survey reveals to you what the concerns are, you have the chance to address them and make positive changes. You need to work hard to become an employer whose employees do not need a union. Do the right thing and become an “employer of choice.” However, this should be done well in advance of any union organizing and legal counsel should be involved. The time is now.

Benchmark Pay & Benefits: How does your company compare to other like companies in the area in terms of pay and benefits? Review your compensation practices against local pay surveys. Are you underpaying your employees? Review your benefits package against local surveys, too.

Critically Evaluate Supervisors: Do you have good supervisors? Do your supervisors treat all employees fairly and respectfully? Do they understand the company policies and apply those policies consistently? Do they make themselves available to the employees? Are they approachable? Having poor performing supervisors has always been a fundamental reason employees seek to organize. Now is the time to make sure that your supervisors are rock solid.

Educate: Educate your employees about what union authorization cards are. Explain their meaning under today’s current law and how that would change should EFCA pass. Explain that they have no obligation to sign any cards under any circumstances. Train your management team about what they can and cannot do or say during an organizing effort.

Union Free Value Proposition: Communicate to your employees your desire to remain union free. Tell your employees that a third party is not necessary and that the ability for an employer to communicate directly with the employees works the best.

Solicitation/Distribution Policy: Make sure you have a solid no solicitation/no distribution policy. A policy that prohibits non-employees from coming into the workplace and handing out literature and prohibits employees from passing out literature during work time is crucial.

Bulletin Boards: If you have bulletin boards, make sure to have a policy that only company information can be posted on it. Ensure that employees don’t have the right to summarily attach whatever they wish to the bulletin board.

Community of Interest: The EFCA allows the union to gain representation through a card check in an appropriate bargaining unit. The NLRB’s test for an appropriate bargaining unit is whether the petitioned-for employees share a “community of interest." Applying this standard, employers should work with legal counsel to investigate the bargaining unit possibilities that exist in their workplace today, and whether alternative configurations are possible.

The message that needs to be received is that new challenges require new, proactive approaches to addressing the union issue. For additional information on how to plan for union organizing under the EFCA, how to become an “employer of choice,” the Employee Free Choice Act, or any other labor-related legislative efforts or issues, please contact Kevin Carr (304.340.3877 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) or any member of Spilman's Labor & Employment Group.

©2016 Spilman Thomas & Battle, PLLC
Michael J. Basile / Responsible Attorney