Another workplace mandate may be in the pipeline

    With the election of Barack Obama and the significant gains by the Democratic Party in both the House and the Senate, union organizing is about to become much, much easier.

    President Obama and Vice President Joe Biden were co-sponsors of the Employee Free Choice Act (EFCA), the most significant piece of labor law legislation to be introduced in decades. The EFCA is virtually certain to become law in 2009. 

    The EFCA will amend the National Labor Relations Act (NLRA) by depriving employees of their right to vote in private, via a secret ballot election, as to whether they wish to be represented by a union.
    Instead, if a union has obtained signed authorization cards from a majority of a company’s workers, there will be no election. Instead, the union is simply declared the bargaining representative for the workers.

    Under the current NLRA, a union has to obtain signed authorization cards from at least 30 percent of a company’s workers before the National Labor Relations Board (NLRB) will conduct an election. An employer then is given a period of time to educate its workers on why a union is not best for them and the company. The workers then vote in a secret ballot election as to whether or not they wish to be represented by the union.

    As you can imagine, many employees feel coerced or intimidated into signing a union authorization card in the first place. Indeed, most just sign the card to appease their co-workers or avoid further pressure from the union. However, when it comes time to cast their private ballots, employees can vote against a union without fear of retaliation or reprisal from their co-workers or the union. Under the EFCA, employees would no longer enjoy this basic right.

    It is not hard to see how truly undemocratic the EFCA really is: imagine sitting at your kitchen table with your family and a co-worker shows up at the door with two union representatives and wants to "talk to you." If you don’t sign the union authorization card at that point, those same individuals will "meet you" in the parking lot before or after work and again ask you to sign the card. If you still say no, the union will use a couple of your "friends" at work to pressure you further. You will be told that your co-workers have enough cards signed to support the union (even though they do not) and that if you do not sign the card, you will be supporting the company and are a traitor to your co-workers – you are either "with us or against us."

    Eventually, you will sign the card just so the union and your co-workers will leave you alone or because you are afraid of being ostracized in the workplace. Next thing you know, a majority of the employees sign cards and the union is in, just like that.

    As draconian as it sounds, this is precisely what will happen when the EFCA becomes law. 

    Some of the other "highlights" of the EFCA are as follows:

    • After a union has been certified by the NLRB, the union can demand that an employer begin bargaining within 10 days. 
    • After 120 days of bargaining, if no agreement has been reached, the federal government will appoint an arbitrator, who will then impose on the company and the employees what he or she believes the wages, hours and other terms and conditions of employment should be and impose that on the employer and the union. The employees are not allowed to vote on ratification of the arbitrator-imposed agreement. Moreover, the arbitrator-imposed agreement will remain in effect for a period of two years.
    • A $20,000 penalty for each employer violation of the NLRA.
    • Reinstatement of pro-union employees who are unlawfully terminated with triple back pay.


    Unless a Republican-led filibuster can prevent the EFCA from becoming law, the rules of the union organizing game are about to change dramatically, to the detriment of employers across the country.

    However, there are many steps you can take to prepare for this inevitable increase in union organizing. It is now more important than ever that you pro-actively address the causes that lead employees to seek the help of a union in the workplace. Likewise, it is equally important to train your supervisors to make sure that they do not unknowingly engage in conduct or make statements that could give rise to an unfair labor practice.


    Bradley Fulton is an attorney at DeWitt Ross & Stevens, a law firm with offices in Madison and Brookfield.

    Sign up for BizTimes Daily Alerts

    Stay up-to-date on the people, companies and issues that impact business in Milwaukee and Southeast Wisconsin

    No posts to display