During the first 100 days of an Obama presidency, the Employee Free Choice Act (EFCA) may be one of the first pieces of employment legislation to become law. The EFCA is a bill that proposes to amend the National Labor Relations Act and effects how unions organize employees. In 2007, the EFCA passed overwhelmingly in the House and there is little doubt that it will be re-introduced in the 2009 Congress. If signed into law, the EFCA would eliminate the election process and allow unions to demand recognition if 51% of employees simply sign an authorization card. Barack Obama has been a staunch supporter of the EFCA.

“Change is having a President who’s walked with you on that picket line; who doesn’t choke on the word ‘union’; who lets unions do what they do best and organize our workers; who speaks out when nursing home workers in Pennsylvania or New York or janitors in California are trying to organize or fight for decent pay and good benefits; and who will finally make the Employee Free Choice Act the law of the land.” --- Barack Obama

Hailed as the twenty-first century’s “New Deal,” the EFCA makes unionization of a workforce easier by allowing employees to form unions through the card check process without an election. The following are the highlights from the proposed EFCA:

  • No opportunity to demand a secret ballot election when a majority of employees have signed union authorization cards and no evidence of illegal coercion by the union can be substantiated. 
  • Heightened penalties against employers that interfere with union efforts. 
  • Failure to agree on the terms of a first collective bargaining agreement within 90 days of union recognition allows either party to request federal mediation, which could lead to binding arbitration if an agreement still cannot be reached after an additional 30 days.
  • Liquidated damages of two times back pay if employers unlawfully terminate pro-union employees.

States in which historically there has been little union activity are fertile grounds for heavy organizing efforts if the EFCA passes because these states offer unions thousands of new, dues-paying members. Additionally, the current state of the economy will make membership drives even more successful. Unions capitalize on employees’ fears by promising to bring higher wages, better benefits and more job security. With business closures and reductions in force making the headlines everyday, job security is a top concern among employees. The combination of the economy and EFCA may create a ‘perfect storm’ for union organizers.

In fact, Change to Win, a new labor federation including the SEIU, UNITE HERE, UFCW and the Teamsters, has recently filed public information requests with the State of Texas in an effort to obtain employee names and addresses. These are the first steps to organizing: obtain employee contacts, send union organizing information, and follow up with direct communication and marketing to employees. All of these efforts will be made without the knowledge or involvement of the employer. Often, the first time an employer hears about a union’s organizing efforts is when the signed union authorization cards are presented and union recognition is demanded.

What can companies do today to prepare for the EFCA? Here are some suggestions:

  • Train Supervisors on Effective Leadership and Management Skills. Employees who are satisfied at work will not feel the need for union representation. To reach that goal, supervisors should be trained on how to effectively manage employees. Too often, front line managers are simply the most skilled workers on the shift or crew. Promotions to management must incorporate training to manage people as well as productivity. These skills include methods for effective communication, counseling and feedback.
  • Train Employees on Reporting and Communication Channels. If employees feel that they can effectively address their concerns with the company on their own, they will have no desire for a third party union to intervene. Open the lines of communication. Remind employees how to address their concerns and complaints regarding work, co-workers or supervisors. Employees need to be heard. Teach them how.
  • Update your Policies and Practices. If policies and procedures are lacking, this may be an invitation for union activity in the workplace. For example, does the company have an anti-solicitation and anti-distribution policy? Is it uniformly enforced? If the company allows employees to solicit one another to buy girl scout cookies on company time and in work areas, then the door may have been opened to allow employees to solicit union membership as well. Have company policies and procedures reviewed now to determine what policies and practices should be revised or revisited before its too late.
  • Know the Company’s Rights. If the company knows what it can and cannot say when faced with union activity, unfair labor practice charges can be avoided. Remember TIPS:

T Threats: The company cannot threaten employees. For example, the company cannot say it will shut down if a union represents the employees.

I Interrogate: The company cannot interrogate employees about the union.

P Promise: The company cannot promise employees anything if they sign or do not sign an authorization card.

S Surveillance: The company cannot spy on employees in order to obtain information about union activity.

Don’t be caught off guard. Contact your labor and employment counsel today to learn the early warning signs of union activity and to formulate a strategic plan to address employee concerns, communicate a union-free philosophy, and address union activity while avoiding unfair labor practices.