If the Democrats retake the White House, small employers should brace themselves for a union organizing onslaught arising from a law euphemistically entitled, The Employee Free Choice Act, or “EFCA” (former Senate Bill 1041).  If some version of this Act is passed by Congress and signed into law by the President, it will provide employees with no real choice at all.  And, small employers will immediately experience a dramatic increase in union organizing drives that target their employees.

No Choice at All: The EFCA eliminates the employees’ right to determine the question of union representation by way of secret ballot election conducted by the National Labor Relations Board.  Instead, the question of union representation would be determined by union card check recognition.  Under the EFCA, the National Labor Relations Board would certify the union as the employees’ bargaining representative without an election, in each and every instance where the NLRB determines that a majority of a Company’s employees, in an appropriate unit, have signed union authorization cards.

Card Check Recognition: The Act’s proposed use of union authorization cards as the exclusive means to determine the question of union representation sanctions a process that is inherently unreliable.  Historically, unions have used pressure tactics and deception to obtain employee signatures on union authorization cards.  Obtaining a signed, union authorization card by way of pressure, deceit or misinformation, does not represent a “free choice”  by a well-informed employee.  Instead, the process turns employees and their employers into victims.  The EFCA would bless this approach as the only method by which the question of union representation would be determined.  The effects of this Act would be felt immediately by small business.

Targeting Small Employers: Under the EFCA, a small employer would be a tempting target for union organizers. For a small employer with only 20 employees, a union would need signed authorization cards from only 11 employees (a simple majority) before asking the NLRB for recognition under the EFCA as the employees’ bargaining representative.  The union could easily obtain these signatures in a matter of days.  For an employer with 50-100 employees, the union could complete this same recognition process within a few weeks.  Small employers will be overwhelmed, with virtually no opportunity to respond.

Mandated Agreements & Stiff Civil Penalties: This same Act would require an employer to reach an agreement with the union on a first union contract, via mandated mediation or arbitration if necessary, with stiff civil penalties proposed (up to $20,000.00 per violation) for employers who violate employees’ rights during an organizing campaign or during first contract negotiations.  This Act has the potential to be the “kiss of death” to small employers who cannot afford the added costs of unionization.  Only immediate preparation, education and training of the management team will prepare the small employer to respond to this very real threat.