Attorneys say clients worried about Employee Free Choice Act

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Published: September 15,2008

If enacted by Congress, the Employee Free Choice Act could potentially make an impact with Mississippi employers that local attorneys say may be huge. This act, EFCA, requires the National Labor Relations Board to certify a union as an employee representative without a secret ballot election if 50% of employees plus one sign union cards.

“It will be a huge change and have an incredible impact on our ability to compete in the global market,” says Tommy Siler with the Phelps Dunbar firm. “Mississippi historically has as low a union percentage as anywhere in the country. We probably will have more companies affected because not as many companies here have unions.”

‘No checks and balances’

Jeff Walker with the law firm Butler Snow O’Mara Stevens & Cannada says EFCA could have a dramatic impact in Mississippi. “We’re hearing from our clients; they’re concerned,” he said. “This is a bad thing for employees, and the National Labor Relations Board should protect employees. The secret ballot has been very important and this takes it away. There are no checks and balances.”

He’s represented employers for more than 30 years and sees this proposal as the most radical change in labor law since 1935. “It would cut the legs out from under employees,” he said. “Any union organizer in Mississippi would be centered on our biggest industries, but small companies will be affected, too — those with 30, 40 or 50 employees. It cuts across the board and can affect mom-and-pop businesses, too.”

Siler points out that, if passed, EFCA will affect all sizes of businesses that are protected by jurisdiction of the National Labor Relations Board. “An employer may go in one day and find he has a union because he may not know this effort is going on to put on a campaign,” he said. “I worry that people will be forced to sign the agreements under pressure.”

He adds that employers are getting prepared for this real possibility. There are even new EFCA defense kits detailing ways employers can communicate with employees frequently and proactively to help employees make informed decisions. Siler says this interest doesn’t surprise him.

“Employers will have to be on an anti-union campaign every day,” he said. “It will be one of the most significant changes in employer/employee relations since the ‘30s or ‘20s. Under the current law, if an employer loses an election, he then can bargain in good faith with the union. With the new law, if there’s no contract in 90 days, the matter must be submitted to federal mediators, who will come in and conduct binding arbitration. It shifts the economic weapons that organized labor and employers have.”

Significant departure

Walker says the act’s requirement to use a group of contract arbitrators is a significant departure from current practice. “These arbitrators don’t work at the company every day and don’t know it and its employees,” he said. “The third big change with this act is that it will increase monetary penalties against employers who are found not in compliance.”

He and Siler, who both practice labor and employment law, say unions are pushing for the passage of EFCA to regain lost clout. “The backers believe it gives people a better opportunity to get organized and be represented by a union,” Siler said. “There are a number of bills pending in Congress that will bring a lot of change in the employer/employee arena.”

There has been a steady decline each year in the number of employee representation elections won by unions. As the law stands now, an election takes place after a union submits a request to the National Labor Relations Board. The petition is filed and the board conducts an election in privacy. If there’s a tie, the employer prevails.

“The campaign process is expensive and the union loses 40% of elections,” Siler said. “With the proposed change, the union is trying to take away the level playing field.”

Contact MBJ contributing writer Lynn Lofton at llofton656@aol.com.

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