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The Employee Free Choice Act: Issues to Consider

The proposed Employee Free Choice Act ("EFCA") would dramatically alter the landscape of labor-management relations in favor of unions seeking to organize employees of non-union employers. The EFCA was reintroduced in Congress on March 10, 2009 (H.R. 1409; S. 560). With some version of the EFCA expected to be enacted into law in 2009, Duane Morris has been closely monitoring legislative developments and helping employers to prepare now for its implications.

Overview

The EFCA is likely to have far-reaching effects on employers across all industries, including those that have never before been the target of a successful union organizing campaign. The law would make it easier for unions to organize employees, provide for arbitrators to impose labor contracts on the parties and increase the penalties for employer violations of the NLRA.

Duane Morris attorneys can help employers with non-union facilities understand the challenges and related business costs this legislation presents and prepare now for the union organizing efforts they may face in upcoming months. Below is an overview of the EFCA's key provisions and a list of actions that our attorneys are helping employers consider to address these issues. For a more detailed summary of the EFCA, please see our Alert, The Employee Free Choice Act -- Is Your Organization Prepared?

EFCA Key Provisions:

• No Secret Ballot Election. A union can bypass a secret ballot election and obtain representation of employees solely on the basis of signed "authorization" cards it obtains from employees. Unions typically obtain cards without notice to the employer or open discussions of the facts and issues that the employees could use to make an informed choice. A union may secure enough cards to organize employees before employers know anything about it, or before employers have a real chance to discuss the issues with their employees and seek to persuade them not to sign.
• Imposition of First Labor Contract. If a first labor contract is not negotiated within 120 days of the union's demand for recognition, the union may request the appointment of an arbitrator, who will have authority to impose a two-year labor contract on the parties, regardless of its impact on the business.
• Increased Penalties. EFCA increases the penalties for alleged violations by employers during periods of union organizing activity, such as: (i) mandatory injunctions against alleged actual or threatened discriminatory actions or actions that may interfere with employee rights, (ii) treble backpay in cases of discrimination, and (iii) civil penalties of up to $20,000 per violation for willful or repeated violations. As a result, a significant increase in litigation before the National Labor Relations Board is expected.

Services

Duane Morris' team of experienced lawyers have dealt with issues that may need to be addressed in light of the EFCA. We can provide the following services to employers:

Monitor Developments: In conjunction with Duane Morris Government Strategies, our firm's affiliated governmental consulting entity, we are monitoring political developments on this bill and can provide clients with periodic updates via email.

Conduct Vulnerability Assessments: Our attorneys can help employers examine their workforces to determine the vulnerability of their employees to lawful union efforts, as well as unlawful organizing tactics (e.g., fraud, misrepresentation, harassment, threats, coercion, etc.); the vulnerability of the company and its various facilities to organizing efforts based on its operational structure, workplace practices, policies and relationships with its employees; and the vulnerability of business plans that may impact operations and personnel.

Documentation of Business Planning: In the current economic climate, many employers may be contemplating or planning discipline, changes in compensation or benefits, a transfer of work to another facility, layoffs or other restructuring. Our attorneys can help provide careful documentation of personnel decisions and planned business changes, and the timing and reasons for those actions to avoid claims resulting from these actions.

Implement and Maintain Best Practices: Unions will likely seek to organize and get employees to sign cards before employers are aware of their activity. Duane Morris attorneys can help evaluate current personnel policies and practices to determine whether a workplace and an employer's current relationships with employees will make it harder or easier for unions to persuade employees to organize.

Develop Response to Union Organizing Strategies: Duane Morris attorneys can help employers adopt a strategy to assist employees in dealing with "mischief" by union organizers. This can include training employees on what to do if they feel harassed or coerced in any way to sign an authorization card.

Our attorneys can guide employers in adopting a strategy to manage the impact of union organizing efforts, e.g., promulgating lawful no-solicitation/no-distribution rules, evaluating operational and organizational issues that affect the scope of the "appropriate" unit and identifying those who will qualify as "supervisors" and therefore be part of the management team to deal with organizing efforts. This team will train employees, gather intelligence on vulnerabilities to organizing and organizing activity and advocate the company position on organizing. Duane Morris attorneys can assist employers in setting up training regimens to help supervisors to handle their increased responsibilities and broad role in dealing with the implications of the EFCA. We can also help employers consider providing training in advance for their current employees, and new hires during their orientation on these issues.

Rapid Response Team: For most employers, their first awareness of a union organizing campaign will come long after the union started the effort. Duane Morris attorneys can help employers prepare in advance of a card-check campaign to respond quickly and capably to be most effective, and help establish a quick response task force composed of a small number of trained and prepared members of the management team. Together we can prepare a well-thought-out plan to respond to a union organizing effort in the most effective manner.

"Campaign in a Can": Since the employer will likely need to communicate with its employees on the campaign issues, and will have little time to prepare these materials, Duane Morris can assist employers in forming a Rapid Response Team that has a set of materials prepared and ready to go in the event an organizing effort is discovered.

Preparation for Bargaining/Interest Arbitration: Under the EFCA, the time period for negotiating a first contract is extremely short, and employers may have little time to prepare. In the likely event the union will use the availability of arbitration to be stubborn in negotiations, the employer will need to be prepared for "interest arbitration," i.e., an adversarial hearing before an arbitrator where the arbitrator's "decision" will be to impose the terms of a two-year labor contract on the parties. Duane Morris attorneys help employers prepare contract proposals and a documented defense of the reasonableness of those proposals. We help develop a bargaining strategy, including steps the employer can take to document its exercise of management rights that will support its position that the same should not be restricted in a labor contract.

Duane Morris EFCA Task Force

Bruce J. Kasten practices in the areas of employment law, labor relations and employment litigation. For more than 25 years, his practice has focused in the areas of management labor relations, including representing employers in dealings with unions and attempts by employees to seek union representation, employment litigation, mass picketing, collective bargaining, arbitration, union representational matters, training and compliance issues. He has also successfully represented a transit industry employer in extensive interest arbitration proceedings as those contemplated by the EFCA.

Eve I. Klein practices in the areas of employment law, labor relations and employment litigation. For over 20 years she has strategically advised clients in labor management relations, including representing employers in all manner of issues that arise under the NLRA and in dealings with unions, such as in representation and decertification proceedings, unfair labor practice charges, strike-related issues, collective bargaining, arbitration and compliance matters. Ms. Klein has extensive experience in dealing with issues arising under card check agreements and in handling mediation and interest arbitration proceedings, all of which are components of EFCA. Ms. Klein also advises clients in all areas of employment law, and defends clients in court and before administrative agencies.

Thomas G. Servodidio chairs the firm's Employment and Immigration Practice Group. For more than 20 years, he has represented businesses in the areas of employment law and labor relations. He has extensive experience handling representation hearings, NLRA election campaigns, the defense of unfair labor practice proceedings before the NLRB, labor arbitrations, and negotiating collective bargaining agreements. He regularly provides advice to businesses on compliance with the federal, state and local employment laws and defends employment litigation in the courts and before administrative agencies.

Howard L. Mocerf practices in the area of employment and labor law, concentrating on unfair labor practice matters under the National Labor Relations Act, collective bargaining, labor arbitration, employment discrimination, wage-hour, OSHA, trade secrets and non-compete agreements and other federal and state statutory and common law employment law areas. He also assists clients in writing and developing employee handbooks, affirmative action plans, harassment policies, substance abuse policies, family and medical leave policies, e-mail and Internet use policies and other employment policies.

Duane Morris Capabilities

Duane Morris employment lawyers regularly counsel and advise employers on compliance with federal, state and local employment laws, with the goal of increasing workplace efficiency and preventing potentially disruptive litigation. We also represent management interests in responding to union organizing campaigns, negotiating collective bargaining agreements, handling administrative agency investigations and defending employment-related litigation.

We offer practical counseling designed to prevent potentially disruptive labor and employment disputes. We handle a wide variety of employment-related litigation and are experienced in management labor relations matters, employment training and workshops and employment litigation. In addition, Duane Morris Government Strategies, a wholly-owned subsidiary of the firm, lobbies Congress on this and similar bills on behalf of their clients.

For Further Information

If you have any questions regarding the issues presented above, please contact any member of the EFCA Task Force, Employment & Immigration Practice Group, Duane Morris Government Affairs LLC or the attorney at Duane Morris with whom you are regularly in contact.