Here is part 2 of the Q&A portion of our EFCA webinar.
Q11. Under EFCA, would employees have a period of time to make a decision to sign an authorization card if they wanted more time?
Chris: EFCA imposes no limits regarding the time in which an employee must decide to sign or not sign. That means an employee could theoretically take as much time as they want to decide, although cards are generally good for 12 months. In reality, union supporters will pressure employees to decide quickly.
Q12. Do you feel this will be tried in the court by employers and employees?
Chris: Yes. I have heard that there will be legal challenges to EFCA and there is a fair amount of debate going on right now about whether or not EFCA is vulnerable to a legal challenge.
Q13. Is the arbitrator a union employee?
Chris: The way EFCA is written, the arbitration panel will come from the Federal Mediation and Conciliation Service, which is part of the federal government. FMCS employees are not represented by a union. If FMCS simply contracts out the arbitration to independent arbitrators, it’s possible but not likely that the arbitrator could be a union member. I can’t imagine a scenario where the arbitrator would actually be employed by a union.
Q14. Will this redefine the current contracts that are signed for 5 years?
Chris: No.
Q15. Are elections still an option under EFCA if 30%-49% of authorization cards are signed?
Chris: Yes, elections are still technically available under EFCA. As a practical matter, however, no union will file for an election if they have 30-49% of the cards. I just read an article the other day that spoke to your question and even union supporters believe that as a practical matter, there won’t be representation elections under EFCA because unions don’t file until they have cards from at least 60% of the employees. Of course, under EFCA, as soon as they get a majority, they’ll file for the card check and not an election.
Q16. It sounds like this act is weighted heavily in the favor of unions. Isn’t there any chance it will be revised before it is re-introduced? What efforts are in place?
Chris: You’re right; EFCA is heavily slanted in favor of labor. I think there is a chance it will be revised, either before it is re-introduced or as it makes its way through the legislative process. Employer groups (the U.S Chamber of Commerce, National Association of Manufacturers, etc.) have become heavily involved in trying to either defeat EFCA outright or to inject a little balance to the law. My own personal view is that EFCA will pass in some form, but I think there’s a good chance that the card check won’t make it through the process and secret ballot elections will be preserved.
Q17. With the economy the way it is and layoffs taking place daily, is this a fear that unions will play off? i.e. a union will offer you more job protection (you will be safe) in a layoff economy.
Chris: They absolutely play on this current uncertainty and instability and many employees will buy into it. In this setting, a union’s message will be “you need us to protect you and protect your job; if you don’t have us to protect you, your employer can do whatever it wants with your job.” Of course, there are lots of good counters to union claims that they can save jobs, but employees who are terrified at the thought of losing their job may sign a card out of desperation.
Q18. Does “At Will” have any impact on ERCA?
Chris: No.
Q19. Why is it more difficult now for an “anti-union” employee to be vocal? Did that change under EFCA?
Chris: A union will keep its card signing activities underground and away from employees who aren’t interested in a union. If those who would oppose a union don’t know that card signing is going on, they won’t know to speak out against it. Even in the current system, unions stay away from strongly anti-union employees. The key difference, however is that under the current system, strong and even not-so strong anti-union employees have an opportunity to voice their opinions during the 42-day period of time after a petition is filed and before the election. Under EFCA, there is no 42-day period when everybody can speak their mind.
Q20. Do you foresee unions focusing on any specific industries in their efforts to obtain more members?
Chris: They will target anyone they think they can organize, but I expect them to focus on service industries/companies like healthcare, retail and hospitality. That’s where unions have enjoyed the most success recently and they will continue to target those industries regardless of what happens with EFCA.
Please check back soon for Part 3 of this intense Q&A session.
