Secret ballot preserves free choice

by James P. Hallan
MRA President and Chief Executive Officer

The MRA Board of Directors has taken a position opposing federal legislation called the Employee Free Choice Act, because it would result in major changes in how employees determine whether they will be represented by a union. To provide our members with information about EFCA, I’m happy to turn my space over this month to an expert on the subject. He’s Thomas W.H. Barlow, a member of Jackson Lewis LLP, a national law firm with more than 530 attorneys exclusively representing employers in workplace law.

The Employee Free Choice Act, also known as the “Card Check” law, has been introduced in both houses of Congress. If it passes, President Obama has pledged to sign it into law. If it becomes law, dramatic changes are in store for businesses.

Under current law, unions may file an election petition by obtaining signatures from 30 percent of the employees in the bargaining unit. However, union organizers are trained to file a petition only after 50 percent or more sign cards. The reason is that unions know once an election date is set, management’s “vote no” campaign may result in an erosion of support. The union wants to end up with majority support on election day to secure a victory.

This approach will be unnecessary if EFCA passes. Here are three major EFCA changes:

1. A majority of signed cards will automatically mean union certification — with no secret-ballot election. Under EFCA, if 50 percent + 1 of employees sign cards, the union will submit them to the National Labor Relations Board. That’s right, one of the main components of EFCA is the elimination of the secret-ballot election whenever a simple majority of employees sign cards.

After verifying employee signatures against employer payroll forms, the Board will certify the union as the exclusive bargaining representative of all employees in the unit. There will be no election. Even where 49 percent of employees did not know a union organizing effort was present, those employees will be represented by the union. The employer will not be provided a campaign period to present its position to the employees. The old 30-percent procedure will remain in the law, but few unions will stop at 30 percent to get an election if a simple majority of cards will guarantee them certification.

2. Employer penalties will dramatically increase. Under EFCA, as under current law, employers are responsible for the misconduct of supervisors. However, under EFCA, new civil penalties of up to $20,000 may be imposed for each infraction. This means that untrained supervisors who might improperly interrogate, threaten, bribe or spy on employees in connection with union activities can create substantial employer liability. This can have a chilling effect on employer communications, thus increasing the prospect of union success.

3. An arbitrator may write your first contract. Under EFCA, once a union is certified by the Board, the employer will have 120 days to negotiate a contract with the union. If no agreement is reached, the federal government will appoint an arbitration panel to impose all terms of a two-year collective bargaining agreement. Thus, under EFCA, the employer either agrees with the union’s demands or places its future in the hands of arbitration panel members who could have little knowledge of the employer, its business or its competitors.

Whether or not EFCA passes in its current form, you should take pro-active, preventive steps now to place your organization in the best position. The key, of course, is to provide a working relationship where union representation is unnecessary for the employees.

— Thomas H.W. Barlow

For more information, you can contact Mr. Barlow in the firm’s Southfield office at barlowt@jacksonlewis.com.