Employee Free Choice Act: Look Out, It's Coming!
by Richard Galbreath, SPHR
rick@performtogrow.com
The Employee Free Choice Act (H.R. 800, S. 1041) is at the forefront of the Democratic agenda in 2009. The recent election has given them the votes, and it will inevitably become law, since President-elect Obama was one of the original authors. When enacted, it will be the most significant change to laws governing union organizing and collective bargaining in over 70 years.
The EFCA was passed by the U.S. House of Representatives in March 2007. The legislation died in the U.S. Senate at that time, but now it stands an excellent chance of becoming law.
The EFCA has three basic purposes:
1. to make the certification process for unions to become the representatives of employees more “efficient” by allowing the NLRB to certify a union based on 50% of employees plus one – a simple majority - signing a union authorization card and bypassing a secret ballot;
2. to speed the negotiation of initial collective bargaining agreements after a union becomes the certified representative by requiring that bargaining begin within 10 days and completed within 90 days or go to mediation; and
3. to provide triple back pay for employees who had been terminated for organizing activity, and penalties of up to $20,000 to employers found to have interfered with organizing or fired employees involved in organizing.
This means that, by handing out authorization cards and collecting signed cards from 50% plus one of your workforce, the NLRB will be mandated to certify a union. No secret ballot, no election. The union has complete control over the process, and the new penalties for interference (or perceived interference) will keep employers out of the way.
What can you do to protect your business? Two things you can do now:
Lobby your legislators. Let them know the burdens that will be placed on you and all U.S. employers if they are forced into collective bargaining agreements crafted by arbitrators. Enough pressure from business may persuade them that EFCA is so dangerous to the U.S. economy that it should never be enacted.
Find out what your employees are thinking and persuade them that unions are not in their best interest. An employee survey and/or focus groups now will give you the information you need to craft communications and rebuild relationships as much as possible before the unions come knocking.
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Here’s what others have to say about EFCA:
The following advice was written by Michael Boldt, a partner at Ice Miller LLP, Indianapolis, for the Indiana Manufacturers Association.
“We have known for years that unions do not organize employees, employers do. The ultimate issue when employees are confronted with union organizing is the employer's credibility. If employees believe at least five essential things about their employers, unions will find it difficult, even under EFCA, to organize employees. The five things are:
• The employer believes that its success is based on the skill, effort and devotion of its employees.
• The employer deals with all employees fairly and honestly.
• The employer respects and recognizes each employee as an individual adult.
• The employer believes that unionization would interfere with the company's policies and practices as set forth above.
• A union free environment is in the best interests (self interests) of the employees themselves.
If employees do not believe these five things, countering the efforts of a union trying to organize those employees will be nearly impossible. The bottom line for the employer is credibility, and an employer is credible only if its actions are the same as its words. In other words, an employer ‘runs on its record’.”
AFL-CIO: It’s Time to Restore Workers’ Freedom to Form Unions
“America’s working people are struggling to make ends meet these days and our middle class is disappearing. The best opportunity working people have to get ahead economically is by uniting to bargain with their employers for better wages and benefits. Recent research has shown that some 60 million U.S. workers would join a union if they could.
But the current system for forming unions and bargaining is broken. Every day, corporations deny workers the freedom to decide for themselves whether to form unions to bargain for a better life. They routinely intimidate, harass, coerce and even fire workers who try to form unions and bargain for economic well-being.”
UnionFacts.com
“The Union Campaign Against Secret Ballot Elections
Facing declining membership, union officials have turned to a highly questionable practice of organizing new members through a process called "card check." With card checks, paid union organizers try to persuade workers to sign cards saying that they favor union representation. This persuasion is documented as frequently including deception, coercion, and harassing visits to workers' homes.
Under current law, as soon as more than 50 percent of the workers in an appropriate bargaining (work) unit sign a union authorization card, the employer can choose to recognize the union as the representative of 100 percent of the workers if the employer believes it reflects actual sentiment of the employees (even though not a single employee has actually been able to cast a personal, private vote). In those relatively rare instances in which an employer has agreed to card check, the employer has often been under pressure, which includes threats of a negative public relations campaign intended solely to injure a company's reputation until it capitulates to this recognition demand. Most often, when presented with these cards, employers have exercised their right to call for a representation election of employees using private ballots because (as even the AFL-CIO has acknowledged) cards are not a reliable signal of an individual's true interest in joining a union. (Often, individuals will sign cards under intentional or unintentional misunderstandings or to get the organizer to stop harassing them, even though the employee may have no desire to join a union.)
As an August 2006 Hartford Courant editorial explained, "[n]ot surprisingly, the card-check procedure almost always results in a union victory because the union controls the entire process." But the real cost is paid by working Americans: the card check process steals workers' rights to a personal, anonymous vote on whether or not they want to pay dues to a union, and all that unionization entails.”
John McCain
“But this is — we’ve been talking about it for a long time — this is a threat to the fundamental of labor-management relations. It’s fundamental to democracy, the right to have a secret ballot.
The way that Senator Obama envisions — and the unions, and this is their big push, they’ve gotten commitments from Senator Obama and Senator Biden — union organizer goes to your house and says, Hey, Joe, can I sign you up for the union?
That is — we all know what that opens the door to. It’s dangerous for America, it’s dangerous to small business. And I think it’s a threat to one of the fundamentals of democracy.”
Home Depot co-founder Bernard Marcus, Business Week, September 22, 2008
“CEOs, and for that matter all Americans, need to know how this legislation would jeopardize our system of free enterprise. In most union organization drives under current law, union organizers convince 60%-70% of the targeted employees to sign union authorization cards. These cards are used to trigger an election. Even unions acknowledge that many of these signatures are given to "get the union off my back." So the organizers give themselves a cushion of votes before the government-supervised election. This cushion often disappears when employees vote by secret ballot. In fact, unions lost more than 4,000 government-supervised elections over the last several years.
The proposed changes to federal labor law would eliminate the secret-ballot election if the union gets 50% plus 1 of the employees to sign authorization cards. The cards become the votes. Game, set, match. What about those 4,000 lost elections? All of those employees who voted "No" would have become union members under the proposed law. This would generate billions of new dues dollars that will translate into unprecedented political power for labor unions.”
Rick Galbreath, SPHR, is president and founder of Performance Growth Partners Inc., a full service organizational improvement firm specializing in HR audits, employee surveys, corporate outplacement services, customer service assessments, customer service training, supervisory training, employee handbooks, teambuilding programs and team training, on-call and project-based HR consulting services, employee retention programs, performance improvement programs, executive coaching, manufacturing process and operations improvement consulting, training and programs, strategic planning, employee retention program, performance improvement programs, interim executive placement, conference speaking, keynote addresses, business turnaround consulting and a wide range of other services. Contact Rick toll-free at (877) 739-4747 or e-mail him at rick@performtogrow.com.
© 2008 Performance Growth Partners Inc.
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