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May
5, 2010
The past decade was relatively quiet for major employment regulations, including federal and state statutes, administrative regulations and judicial decisions. However, 2009 saw sweeping changes, and this year is expected to bring more. The Daily Transcript invited four San Diego employment law leaders to share their insights on what the upcoming employment law landscape will look like -- and the potential impact of anticipated changes.
The reintroduced Employee Free Choice Act (EFCA) would now allow workers at a particular company to unionize through an open ballot and could make contracts mandatory. What are some of the biggest challenges the EFCA may pose to employers if it passes?
 Leonid "Lonny" Zilberman
Partner, Employment Practice
Group
Wilson Petty Kosmo &
Turner
If enacted, EFCA would result in the most sweeping changes to national labor policy since the National Labor Relations Act was passed 75 years ago. When he introduced EFCA, Iowa Sen. Tom Harkin said, "Just as the National Labor Relations Act, the 40-hour week and the minimum wage helped to pull us out of the Great Depression and into a period of unprecedented prosperity, so too will the Employee Free Choice Act help reinvigorate our economy."
At the heart of the NLRA is the secret ballot election process. Currently, during the period between the filing of the petition and the election, the employer and the union have an opportunity to present their views to the voters, much like a political campaign. If signed into law, the EFCA will change the NLRA by requiring the National Labor Relations Board to certify a union upon a finding that a majority of employees have signed authorization cards designating the union as their bargaining representative; eliminating secret ballot elections. This so-called "card-check" certification would deprive an employer of an opportunity to present its view to its employees on whether unionization is appropriate or advantageous for that particular workplace (and would eliminate one of the NLRB's primary duties -- conducting elections).
Another centerpiece of the NLRA has been that it is neutral concerning the content of collective bargaining agreements. The NLRA simply requires that the parties engage in good faith bargaining in an effort to reach agreement on a contract. The EFCA would change this process because if the parties could not reach agreement within 30 days, a government-appointed arbitration board would determine the terms under which the business will operate, effectively "imposing" a collective bargaining agreement on the employer. Such a change seems to undermine, not promote, collective bargaining by taking out of the parties' hands -- and giving to government arbitrators -- the power to dictate the terms and conditions of employment.
If EFCA passes, an employer could end up with a union before it even became aware that a campaign had begun. The best strategy for employers is to be proactive and provide employee relations training to all supervisory employees. Employees often choose a union if morale is low and workers perceive that managers don’t care about the people they supervise. Thus, management training is an effective method to identify these risks. Also, employers should conduct human resources audits to make sure they are following their own policies and are also following the law.
Unions often claim that employees will obtain better benefits and working conditions if they are installed. Employers should evaluate compensation and benefit programs, employee communication systems and supervisory competence, which will all be geared to assessing what needs employees feel are unmet and will potentially lessen the exposure to unionization.
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