Of course, no one can be certain of the exact workplace effects of Tuesday’s Presidential election results. But, at least one major change in employment law is pretty certain – and it is a change that all employers, large and small, in all industries, should be planning for now.
President-Elect Obama has stated clearly his support for the proposed Employee Free Choice Act (EFCA). His election, together with additional Democratic seats picked up in the Senate and Congress, make the passage of EFCA in 2009 a very strong likelihood. That will mean the most dramatic change in labor law in this country in decades.
As a reminder, there are two significant provisions of the EFCA: First, unions will be able to demand bargaining rights based solely on cards that they can pressure employees to sign face-to-face. The protection of a secret-ballot election will be taken away. Second, if labor negotiations between a union and employer for a first contract reach impasse, an outside arbitrator will dictate the terms of that key first contract.
If EFCA passes, you can be certain that unions will launch aggressive card-signing campaigns. It is likely that employers of all sizes and in all industries, including service, retail, manufacturing, and white collar industries, will be targeted. Small- to medium-sized businesses will be especially vulnerable because union organizers may be able to get a majority – or close to a majority – of the cards signed quickly before the employer is able to react.
So what should companies do now? The most effective defense against a union card-signing campaign is cultivating a workforce where people are not inclined to sign a card. That means promoting management behavior and policies that make the arguments for card-signing fall on deaf ears. The prudent employer will not wait and see whether EFCA becomes law. That may be too late. The kinds of management behavior and policies that defeat union organizing cannot be put in place overnight.
A solid preparation plan for this potential sweeping change in labor law includes at least the following steps:
- An effective defense starts and ends with appropriate management behavior, so a program to reinforce management training about the sorts of things that support union organizing should be done now.
- Managers should be instructed about what might make an employee susceptible to a card-signing effort and what manager conduct will make it more likely an employee will “just say no” if asked to sign.
- Re-visiting and evaluating wages and benefits to assure that they are competitive is another means of defense.
- Prudent employers will also develop sound workplace policies that promote employee involvement and an active voice for employees in workplace matters.
- Finally, making certain that managers are aware of the risk of union organizing and understand what can be done legally in response to organizing will also help employers prepare for EFCA.
A commitment to these steps now will be time well spent, regardless of what happens with EFCA. The very same steps that make a company strong against union organizing also promote fundamentally sound management behavior, consistent and fair treatment, and improved employee morale.