Practical Tips to Address EFCA
Practical Tips to Address the Employee Free Choice Act
September, 2009
Asheesh Agarwal & Hal Coxson[1]
The Employee Free Choice Act (EFCA) continues to lurk just beneath the surface of Washington’s policy debates. At a White House meeting in early August, President Obama reiterated his strong support for EFCA to union leaders. Senator Arlen Specter has announced that he will support an alternative bill to EFCA, potentially providing the 60th vote needed to ensure its passage. Senate Democrats are reportedly developing a strategy to “railroad” EFCA, including “card check,” after the August recess following the debate on health care.
EFCA contains the most far-reaching series of anti-business labor law “reforms” since the unions last tried, and narrowly failed, for omnibus reform in 1977-78. EFCA is designed to silence employers in union organizing campaigns. EFCA would substitute “card check” recognition for secret ballot elections, or at the very least speed up union representation elections so that employees will be unable to learn the facts from their employer. EFCA would also mandate contracts imposed by an outside, federally appointed arbitrator, and impose draconian new penalties against employers, but not unions. Even the EFCA alternative bill is expected to allow outside union organizers onto an employer’s property to address employees at work, but to prohibit employers from initiating meetings with their employees at work regarding union organizing at any time during the union campaign.
What can employers do in the face of EFCA? Employers still have a chance to defeat EFCA, or at least remove its most egregious provisions. To do so, however, business must make its voice heard. Unions and union sympathizers are speaking out loudly and in large numbers. Members of Congress generally believe that the business community cares less than organized labor. Calls, visits, letters, and emails will ensure that Congress hears the voice of the business community.
In addition to fighting EFCA, employers can take certain practical steps to get their own houses in order in case that EFCA, or a version of EFCA, becomes law. As a first step, employers should prepare a written response plan to address potential unionization efforts. This plan should assess the risks of union activity and identify the types of tools needed to counter any activity, such as employee surveys, position statements, and a communications strategy. The employer must develop a plan to ensure that the entire organization, from leadership to hourly employees, understand the consequences of unionization.
Next, the employer should train all supervisors on how to communicate with employees about a potential union campaign. In particular, supervisors should receive training on how to recognize and report “Early Warning Signs” of union activity. Such training will give an employer more time to prepare for a campaign. Proper training allows supervisors to describe their personal experiences with unions. Supervisors also must understand basic labor concepts regarding what they can and cannot say. EFCA would raise penalties on illegal communications, deterring employers from communicating with employees or imposing even legitimate discipline on union supporters.
Employers should also identify the issues that concern employees and that may allow a union to garner support. Issues drive all union organizing activity. As a precaution, an employer should interview supervisors, survey employees, and conduct focus groups about the issues that concern employees. Employers should then provide their employees with feedback and let them know that their views matter. By identifying problems before a union campaign starts in earnest, an employer can nip a successful campaign in the bud.
Having identified potential problems, an employer should then address those problems through a positive employee relations program. Through such a program, an employer would allow for open, two-way communications, and implement fair, consistent policies that are subject to peer review by employees. These types of steps can improve employee morale and insulate them from the appeals of union organizers. Finally, an employer should educate employees. Employers should educate both new hires and incumbent employees about the employer’s position on unions and about the consequences of signing a card. Through these efforts, an employer can help employees realize that there are consequences to signing a card, particularly if EFCA changes the law.
Employers still have time to counter EFCA. With time and effort, employers can defeat EFCA. If EFCA, or an alternative to EFCA, does become law, however, employers should take the precautions necessary to get their houses in order.
[1] Asheesh and Hal are attorneys at Ogletree Deakins. Both have extensive experience with labor and employment law and with the federal government. Asheesh served in a senior position in the Civil Rights Division of the U.S. Department of Justice. He can be reached at asheesh.agarwal@ogletreedeakins.com, or 317-916-2144. Hal has spent more than thirty-five years in Washington, D.C. working on behalf of management on labor and employment matters before Congress and the Executive Branch. Hal can be reached at hal.coxson@ogletreedeakins.com, or 202-887-0855. For their biographies, see http://www.ogletreedeakins.com/attorneys/index.cfm?Fuseaction=AttorneyDetail&attorneyid=756 and
http://www.ogletreedeakins.com/attorneys/index.cfm?Fuseaction=AttorneyDetail&attorneyid=287.
