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Proposed Employee Free Choice Act Underscores the Value of Employee Communications

April 28, 2008

Our clients are advised of the real possibility that the next Congress will pass the Employee Free Choice Act (which has already passed the House by a vote of 241-185). The act represents a complete overhauling and restructuring of the National Labor Relations Act and dramatically changes the world for employers. It would re-work the way by which employees decide whether they will be represented by a labor union-and employers will surely find the going much more difficult.

First, the election now used by the National Labor Relations Board-in which the affected employees cast secret ballots-would be gone. Instead, an employer could be "unionized" if a majority of employees sign "authorization cards." The employer might know nothing about the organizing drive and might have absolutely nothing to say about the result. The employer might also not have a chance to persuade its employees that such a decision is a poor one. If an employer's communications are absent or inadequate, the union will have an easy time of it.

If that isn't bad enough, the act further provides that, once unionized, the employer has 90 days in which to reach an agreement with the union on a collective bargaining agreement. If that fails, the employer can be forced to go to mediation and, if that fails, to binding arbitration-at which step the arbitrator can determine the contents of the contract with which the employer must live for two years.

Further, finally, the act provides for stiffer penalties for unfair labor practices committed by employers-but fails to make such provision for unfair labor practices committed by unions.

It is impossible to overstate how dramatic a change this is. The act, if passed, would truly revolutionize the American workplace. The idea that the employer would have virtually no opportunity to address and refute union claims, made as the authorization cards were signed, is shocking to employers used to the old system.

The lesson here is clear. If the act is passed, all employers are going to have to include, in their training and orientation procedures, information on authorization cards and the employer's viewpoint about them. Needless to say, "communications" will take on an even more important role at work. Stay tuned!


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