Employee Free Choice Act

President-elect Obama and leaders of both Houses of Congress have made the Employee Free Choice Act (“EFCA”) a legislative priority in 2009. Obama co-sponsored the legislation, also known as "card check," in the Senate, and he promised to make passage of it a top priority during his administration.

EFCA would effectively eliminate secret ballot elections in union organizing attempts and require businesses to recognize unions based solely on authorization cards signed by employees. Under EFCA if a union is able to convince, cajole, pressure or threaten a majority of your non-supervisory employees at any of your U.S. facilities to sign union authorization cards, your company will be required to recognize that union as the sole bargaining representative of your employees. You will be required to bargain in good faith to an agreement with the union, and if an agreement cannot be reached with that union on wages, hours, and working conditions within one hundred and twenty (120) days, the government will impose an agreement on you -- that is the government will decide what your employees will earn, the benefits they will receive, and under what, if any, circumstances you can administer policies, discipline and discharge.

EFCA is singularly the most damaging piece of labor legislation I have seen in my 32 years of labor relations practice. In each of the 120+ counter-organizational campaigns I have handled, the employees decided in the privacy of a voting booth after hearing both sides of the issue against union representation, even thought most of those same employees signed union cards. Signed union authorization cards are frequently the result of peer or union pressure and do not accurately reflect employee sentiment. Under EFCA unless an employer has advance notice that cards are being circulated among the work force, it will have no opportunity to communicate its views regarding why a union is not in the employees' best interest. Eliminating the election process and the time it provides for both sides to be heard will result in thousands of unwary employers being organized soon after the passage of EFCA. Indeed, the Service Employees International Union estimates that the ease of unionizing under EFCA will allow it to organize one million workers a year, as opposed to the 100,000 workers it currently organizes annually.

While there remains the remote possibility that some form of EFCA will not be passed, most critical observers believe EFCA will become law – a law that will make it far easier for unions to win the right to represent your employees. The result? An environment of “us” versus “them,” one that often ignores market forces in the setting of wages, hours and working conditions. Indeed, you need only turn on the television and watch the Big Three automakers begging for government money, yet not addressing their most significant disadvantage: a high-priced union workforce that cannot compete with the nonunion U.S.-based foreign-owned plants of Toyota, Nissan, and Honda. And, it is not just the wage and benefit disparities that exist between union and non-union workplaces that make union shops uncompetitive, but also the paradigm instilled by organized labor into the employees they represent – that management is the enemy – hardly a foundation that supports engaged, competitive employees necessary to compete in today’s global marketplace.

During 2009, I will offer a program on EFCA to a limited number of employers and industry assocations, focusing on what you should be doing to avoid its passage, what employers and managers should be doing to prevent union organization in an era of emboldened unions, how to deal with EFCA as it becomes a topic of discussion in every workplace, and how and when to involve your employees in the effort not only to keep your company non-union but to insure your employees’ democratic right to vote on issues that will affect your business and their lives.

The one-day program, “The Employee Free Choice Act: Winning When You're The Designated Loser” will include the following components:

Executive update on legislative developments
Evaluation of specific personnel policies and practices that exist in your organization that result in a successful union organization attempt
Training your managers and supervisors on how to recognize organization earlier and how and why to maintain your non-union status regardless of the law, including essential elements of my “Doing The Right Thing” and “Credible Connections” programs that have served employers effectively over many years in their efforts to remain non-union. Included in the training is education on important National Labor Relations Board rules, warning signs of union organization, as well as training on the specifics of EFCA and why the legislation is not in the best interest of employers, managers, or employees.
And, for employers desiring more intensive evaluation and preparation, I will also offer these services as time permits:
Development of specific responses to union organizing strategies
Training your trainers (making your HR department capable of taking union-free management training to first-line supervisors)
Training employees and new hires on the dangers of EFCA, authorization cards, and how to deal with coercion, misrepresentation, and harassment by union organizers and pro-union employees
Preparation of a campaign in the event card-signing strikes your workplace
Development of a rapid response team in the event of an organizational attempt by a union

In 2008 I handled five union organizing campaigns, and turned away several others. I anticipate 2009 will likewise be filled with union organizational attempts, especially against those employers who are not ready for EFCA. I urge you to prepare for EFCA before, not after, its passage. If you have questions, would like more information, or would like to book a date or dates, please contact me.