Perhaps you’ve heard of the Employee Free Choice Act--legislation getting a big push from organized labor. Observers believe president-elect Obama will sign it into law; he co-sponsored the bill in the last Congress. When he’ll do so isn’t clear, as he faces many other issues. But employers should know how the bill would affect them—and what they should begin doing now.
EFCA would mean three big changes. Steve Bernstein, managing partner of Fisher & Phillips’s Tampa, Florida, office, helped prepare a brochure on the bill for the firm’s clients. It explains these segments of the bill:
- The National Labor Relations Act would be amended to do away with secret ballots to elect a union to represent workers. Instead, organizers could use only the method called “card check.” Once they’d gathered signatures of a large percentage of employees, they would ask the National Labor Relations Board to certify the union.
- If an employer doesn’t agree to an initial contract between management and the union within 90 days, the union can submit the document to a mediator or even binding arbitration; the employer would lose the right to negotiate.
- Employees who are wrongly disciplined or fired for union activity during the sign-up or contract phase would be entitled to triple back pay, and the employer could be assessed further civil penalties for willful violations of employee rights.
Bernstein says the most difficult provision for employers would be the dramatically shorter “campaign” period. In the past, once a significant percentage of workers had signed cards indicating their interest in the union, organizers and employers then had up to 42 days to inform employees—from both sides—of the advantages and disadvantages of union membership. Were all segments of EFCA to become law, that period could drop to as little as 5 days. “Historically,” Bernstein says, “employers have not shared their views about why a union isn’t needed or wouldn’t work well until they learned that organizers were active with their employees. They didn’t want to raise the subject, for fear it would put the idea in workers’ heads.” With as little as 5 days to counter the union’s side of the story, though, that reluctance to speak has to change.
What about the opposition? Business groups have banded together to fight the passage of EFCA, and even George McGovern, a Democratic candidate for president in 1972, has come out against the bill. One of the most unpopular provisions is the loss of the secret ballot. We suggested, and Bernstein agreed, that secret ballots are such a mainstay of the U.S.’s governing process that forcing workers to vote openly is “close to un-American,” as he put it. So of all three provisions, that’s the least likely to be passed. The most likely one for success is employer penalties and back pay for employees who experience discrimination.
More Ways to Prepare for EFCA
Steve Bernstein and other labor attorneys at Fisher & Phillips have loads of advice for employers—things you should do to prepare for passage of any or all provisions of EFCA. Begin by educating top-level managers about how the organization’s ability to remain union-free could be endangered: Your goal is to gain their support (and the budget) for further steps.
Then, immediately if not sooner, demonstrate to employees your track record of treating them fairly and with respect. Show them why they don’t need a union to protect their rights on the job. The next step should be to review your policies with an eye toward shoring up the workplace against union incursions.
For example, suggests Bernstein, a no-access policy can keep nonemployees not only out of your premises but also out of your parking lot, if you craft it properly and apply it consistently. And, a no-loitering policy can prevent clocked-out employees from soliciting other workers on behalf of a union. If you don’t have one, establish a policy that the company’s bulletin boards, e-mail system, and other communication channels are never used for personal matters—not even a baby shower announcement. That way, you can legally prohibit union communications through these channels. Again, be scrupulously consistent in enforcing these policies, Bernstein advises. Here are the next steps:
- Identify any issues employees may have through interviews, audits, and surveys. Then create a plan for solving the problems. Says Bernstein, “Take potential weapons out of a union’s arsenal.”
- Meanwhile, keep the lines of communication going, ensuring that ideas and feelings travel both up the organization and down to all employees.
- Strive to make employment decisions at all levels not only fair but also perceived as such; unions can thrive where workers feel cheated or ignored.
- Another vulnerability is the perception that the organization is not maintaining a safe and healthful environment, so pay attention to those issues.
- At the same time, review pay and benefits to make them competitive by conducting periodic area and industry surveys.
- Talk to employees about why a union may not be right for them, using facts, opinions, and examples or experiences. You could say, for example, that workers at the company down the street saw their wages go down rather than up after they unionized.
- And tell supervisors to watch and listen carefully to workers, to see behavior changes that could signal they’ve been contacted by union organizers and told to keep it a secret. Well used, these strategies can help you stay union-free.