*As seen in the December 11th issue of The State Journal.

While you still have time, you should be considering what actions you can take now to make you less vulnerable in the coming year.

It's no secret that one of the early agenda items in the new Obama administration will be passage of the Employee Free Choice Act (EFCA).

Are you an employer who believes in good communications with employees, mutual respect and managing your business in a way that makes a union unnecessary? Nevertheless, you may be wondering whether your company is vulnerable to union organization. While you still have time, you should be considering what actions you can take now to make you less vulnerable in the coming year.

Here is my list of top five items:

  1. Keep lobbying your representatives to keep secret ballot elections and oppose the mandatory imposition of a contract as an unconstitutional taking of your rights as an employer to bargain a contract that is right for your needs.  
  2. Your management team will need appropriate Labor Law and TIPS training.  
  3. Your work force needs more education about unions, the advantages of being union free and the significance of their signature on a union card. You can do this through a PowerPoint tool. Excellent videos also are on the market that you should consider reviewing and showing to your work force on these issues.  
  4. Determine what "peer contract" would likely be imposed upon you if the current EFCA legislation passes? See whether you can get a copy so you know what you may be up against from a budgetary standpoint.  
  5. Last but not least, consider an employee survey tool now before an organizing campaign starts. After a campaign starts, conducting a survey may be an unfair labor practice.

There is considerable literature that answers this question, all worthy of consideration. Here are the top reasons from my perspective: Surveys can be used to measure:  

  • your employees' satisfaction with their jobs;
  • their perception of how their pay and compensation compares in the marketplace;
  • their perception of your policies;
  • their support for the company's programs and initiatives;
  • their perception of your management team and your company's focus on its customers, its business results, its safety;
  • how they see the company's plans for stability, future growth and success. This information is invaluable to you as you assess where you stand and where you want to be in the coming year.

Surveys are an indispensable tool for giving employees a voice which can be heard at the top levels of the organization. That voice may also drive change. When that change occurs as a result of and in conjunction with an employee survey, that change usually comes with critical employee buy-in. Surveys are a forward-looking tool that gives management a continuous improvement process to identify and remove barriers to productivity.

Finally, and not to be ignored, if you do an employee survey on a regular basis (I recommend every 18-24 months), you will likely be able to perform one without being in violation of the National Labor Relations Act (NLRA).

Under NLRB case law, employers are allowed to conduct such surveys of employees if: 1) there is no union-organizing campaign in progress; and 2) unsigned questionnaires are employed to determine the attitudes of employees regarding company policies.

However, once a union organizing campaign is under way, there is a risk of a Section 8(a)(1) charge, under the NLRA. The decision as to whether an employer has violated the NLRA then turns on whether the survey constituted unlawful solicitation of grievances or if promises are made by the employer during the feedback sessions following the survey.

The reason a survey becomes unlawful while an organizing drive is under way is that the survey clearly becomes a tool for the "solicitation of grievances." In short, where a communication is designed to determine what problems motivated the employees' desire for a union and/or that communication contains an implied promise by the employer to solve these problems so as to avoid the union, the communication is an unfair labor practice.

Labor law violation can even be found during a pre-petition organizing drive if the company has had no previous history of using employee surveys and starts doing one as soon as it has knowledge of an organizing drive.

For these reasons, content and timing of your survey effort are extremely important. I am recommending employers consider employee surveys now, before the passage of the EFCA results in any organizing efforts at your company.