The “Employee Free Choice Act” is proposed Federal legislation that could have significant and far reaching impacts on private sector employers in virtually every business sector. The proposed Act has been sitting on the self for over a year and was thought to have little to no chance of becoming law. However, with the recent power shift in Congress, this piece of legislation has a renewed chance of becoming Federal law. Big labor has long championed this Act because it would make their lives easier, at the expense of non-union employers and employees.
The Act would amend the existing National Labor Relations Act and make it much easier for labor unions to organize new members. The Act would require employers to recognize a union without a secret ballot election. Under the proposed Act, if a union were able to get enough union authorization cards (a majority) signed by employees then they would automatically become the bargaining representative for those employees. The problem with this approach is that employees are often coerced or mislead into signing one of these cards. When Congress first passed the National Labor Relations Act in 1935, they understood this dynamic within the organizing process, which is why they favored a secret ballot election as the means by which employees could chose whether or not they would be represented by a union. A secret ballot election is truly the most democratic means of allowing employees to make this important decision. In addition to eliminating the election process, this Act would also increase the punishment to employers for committing Unfair Labor Practice charges. Additional punishments for violating the National Labor Relations Act would include (1) back pay plus liquidated damages; and (2) additional civil penalties.
Now more than ever, it is crucial for employers and management teams to understand their rights and responsibilities under the National Labor Relations Act and to understand what actions constitute Unfair Labor Practices. It is also important for employers and management teams to recognize the early warning signs of an organizing campaign and conduct an employee relations assessment to determine if they have vulnerabilities to union organizing, before any actual activity begins.