EMPLOYEE FREE CHOICE ACT (EFCA)
EFCA as currently drafted will result in three major changes that will profoundly impact your company. These changes are described below.
1. Certification on the Basis of Signed Authorizations
The most widely publicized change to the National Labor Relations Act as a result of EFCA will be the substitution of a system of election by card check rather than through a secret ballot system that is currently used. If a union collected authorization cards for 50% plus one of your employees, you would be unionized. In most instances, this would occur without your knowledge or having a chance discuss the issue with your employees. The card check system is also prone the use of intimidation and peer pressure by union organizers.
2. First Contract Mediation and Arbitration
EFCA will also provide that if an employer is organized under EFCA and is unable to reach an agreement with the union within 90 days, the dispute will be resolved by binding arbitration by an arbitrator appointed by the federal government. The terms of the arbitration agreement will be binding for two years.
3. Penalties & Increased Back Pay for Unfair Labor Practices
EFCA will require the National Labor Relations Board (NLRB) to seek an injunction against an employer whenever there is reasonable cause to believe that the employer has discharged or discriminated against, threatened to discharge or discriminate against employees, or engaged in conduct that interferes with employee rights during an organizing or first contract drive.
EFCA also provides for increases in the amount an employer is required to pay when an employee is discharged or discriminated against during an organizing campaign or first contract drive to two times back pay, in addition to the back pay owed, for a total of three times the back pay.
Finally, EFCA provides for civil fines of up to $20,000 per violation against employers who are found to have willfully or repeatedly violated employees’ rights during an organizing campaign or first contract drive. Currently there are no civil fines for such violations.