Employee Free Choice Act

Today, only about 7 percent of the private workforce is unionized, so companies have devoted less attention to the management training and human resources initiatives that once helped prevent union organizing. Further, the current economy is forcing companies to make very difficult decisions with respect to their employees – sometimes treating union-free employees more harshly than unionized counterparts. All these developments are to the companies’ detriment, because unions have spent a half-billion dollars to push proposed legislation, the Employee Free Choice Act (EFCA).

If passed, the act would change labor-relations law as we now know it, in two ways:

union membership elections via secret ballot would be replaced by card checks or petitions, giving union organizers the element of surprise over employers in quickly establishing a union, and
the first employment contracts between employers and unions would be resolved, if necessary, by the Federal Mediation and Conciliation Service (FMCS) imposing a binding two-year contract, and your union has an automatic contract.

There also are enhanced penalties against employers only, but they pale in comparison to those two changes, which would spur increased union organizing in partially unionized industries, and wholly new organizing attempts in non-union industries.

But unions aren’t waiting for the EFCA to pass. They are already salting workplaces with people who are trained and prepared to lead union organizing, before anyone can realize it, in previously union-free industries like biotech, retail, financial and health care.

Pepper Hamilton’s Labor and Employment Practice Group can help employers face the effects of the EFCA with prudent and cost-effective advance preparation that will help keep workplaces positive, employee-friendly and fair. We can help employers enhance their workplaces—regardless if the EFCA is passed in its current form or not.

Pepper can help employers take preventative measures against new types of organizing that could result from successful passage of the EFCA. It’s not union-busting. Instead, we can help employers develop or enhance real, lasting pro-workplace initiatives resulting in a positive corporate culture in which people don’t feel the need to turn to a union. We can help employers design, evaluate and implement plans for:

Auditing/Surveying: Large multi-site companies may have great employee-relations policies, but if they aren’t able to monitor sites, they won’t realize a location has employee problems until that site births a union. Pepper can guide employers in developing audits and surveys to maintain healthy employee relations, whether in one worksite or hundreds.
Management/Employee Teams: Cooperative management/employee committees also can be useful in discouraging union organizing, and Pepper can show you how to establish and monitor them so they comply with unfair labor practice prohibitions. Unions despise them because of their effectiveness.
Training: Pepper can evaluate management-team training and the effectiveness of employers’ problem-solving efforts. We can suggest valuable changes, or set up initial training in areas such as communication, analytical systems and management development. Pepper attorneys have done this sort of work for years, and we know ways to fix any workplace problem.

Make no mistake: the EFCA can bring serious changes, so good planning is key. Because on the eve of union organizing, employers won’t have the time or the ability to change the ship’s course, unless initiatives toward auditing, monitoring and training are already in place—which, whether the EFCA passes or not, are all part of a healthy workplace.

EFCA Eases Union Recruiting and Organizing, but Can Limit Workers’ Options

Employees primarily join unions not because of wages, but rather because of how they’re treated day-to-day, in various ways. But collective bargaining or a union may not be able to offer workers the concrete help they expected, in situations like these:

workplace challenges (always a given), which multiply in a down economy
workers – even up to the level of poorly trained supervisors – who foment discontent by criticizing the company destructively, not constructively
supervisors with little power to ease dysfunction in the workplace because they lack an avenue up the chain of command to offer workers relief
poorly handled personnel changes that have eroded workers’ morale.

Yet a good organizer can use workers’ heightened emotions in these instances, and others, to get them to sign a petition. Traditional union organizing is more public; takes more time; and gives people who have been in unions the time to speak to other workers about their experiences about realities of union membership, such as union dues, mandatory strikes, failure to represent and union bargaining that may not have been in their best interest as individuals. But the EFCA’s proposed changes to union organizing—its simplifying and speeding of the process—would rob both employers and employees of the time for rational reflection and an informed electorate.

And while unions often organize workers as secretly as possible, traditionally that process still takes time. But the EFCA can help an organizer obtain that 51-percent interest threshold within days, not weeks; they have the signed cards, they have the petition, and the employer suddenly has a union.

How Pepper Can Help Employers Plan and Prepare

Bottom line: If employers have done the right thing for their employees, they are not going to have a union. But if they are facing card-signing issues, we can help them quickly, and also can review several legal issues in advance. For example:

multi-site organizations, like banks or retail outlets, can determine if a single site would be an appropriate bargaining unit under the EFCA, or whether several sites in a county, district, state or region must be grouped together in order to organize
In industries with many unionized workers already, remaining employees (for example, clerical employees in manufacturing) may or may not be an appropriate “residual unit”
in healthcare, nursing supervisory issues should be resolved, and predictable union strategies to organize the systems should be evaluated, and
industries that have never had organizing before, like biotech, could have organized workforces in days or over a weekend in a single targeted location.

Having and keeping a contented workplace takes work. Pepper can help employers examine, in advance, communication and treatment issues in their workforce, on a day-to-day basis.

Don’t wait until someone in today’s world has the cards, or in tomorrow’s world has a union. Don’t continue to foster situations in which people in the heat of the moment join an union without fully realizing what they’ve done. For quick, targeted help in all matters related to the EFCA, contact Labor and Employment Law Practice Group Chair Jonathan Kane, at 610.640.7803 or kanej@pepperlaw.com.

For a list of articles on EFCA and other labor issues, please click here.