The Employee Free Choice Act (EFCA) has come back to life with the full support of the President. The Act, as reintroduced in the United States House of Representatives on March 10, 2009, would dramatically change how unions can organize and provide unions with tremendous leverage over employers. The Act also known as the Card Check law has grown in controversy as the economy falters.

1. Certification of a group of employees on the basis of a majority sign up. This “card-check” process would replace the current secret ballot elections that allow both the unions and employers to engage in a robust campaign for their prospective sides prior to the vote. The elections are currently conducted by the NLRB. Under this proposed bill, employers fear that unions can persuade their employees with empty promises without the employers having a chance for rebuttal. Under the EFCA, employers may never learn that there is an effort to unionize their business until the union knocks on the back door with 51% of the employees’ support.
   
2. Enhanced penalties for employers who interfere with employees attempting to unionize or negotiate a first contract. Civil fines up to $20,000 are proposed, as well as three times back pay for employees terminated while exercising their rights under this Act. Curiously, absent in the bills are any increased fines when union uses coercive tactics.
   
3. The EFCA, if enacted, will generate enormous union membership dues when unions obtain a majority of signatures without a secret ballot vote at employers’ work sites. Industries should be wary of this legislation and take proactive measures before it is too late. The U.S. Chamber of Commerce is actively opposing this bill and was at the Capitol in full force the day it was reintroduced.

Action is needed now. Employers should conduct self-audits to insure that their current salaries match the market place. An underpaid workforce is more susceptible to unionizing efforts for better wages. All Human Resources policies on the drawing board should be finalized. Employers do not want an Arbitrator to finish off their policies if the parties are at impasse. Employers are free to educate employees now about the high costs of unions and why management can more efficiently deliver better terms and conditions of employment without the expense of negotiating with a union. Open the lines of communication and find out the concerns of employees. 

Employers may find that many of those concerns may be non-monetary and, if addressed in a timely manner, there will not be a burning desire to unionize with or without the passage of the EFCA. The key is to be prepared.

Leonard Dietzen is a partner in the firm’s Tallahassee office and focuses his practice on labor and employment law.

RumbergerKirk provides litigation and counseling services in a wide range of civil practice areas including products liability, commercial litigation, intellectual property, environmental, employment, insurance, professional liability, health care and administrative law. Offices are located in Orlando, Tampa, Miami, Tallahassee and Birmingham, Alabama.