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The Employee Free Choice Act

June 1, 2009
by Michael Pepperman, Esq.
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What you can do to combat unionization

On March 10 the Employee Free Choice Act (EFCA) (aka the “union bailout”) was introduced into the House of Representatives and U.S. Senate. EFCA is designed to increase the success rate of union organizing efforts by eliminating secret ballot elections. Instead of secret ballot elections, union organizers will only have to get a simple majority of a designated group of employees to sign cards (also known as “card checks”) for a union to be recognized as representing that group of employees. It will be quite easy for organizers to pressure workers into signing cards. Any number of coercive, high-pressure tactics could be used to get nursing home workers to sign cards, and it will all be done without management's counterarguments.

In addition, EFCA provides for huge fines (up to $20,000 per violation) for any employer who violates the National Labor Relations Act during an organizing drive or during negotiations for a first contract. EFCA also mandates binding arbitration for those items that management and the union cannot agree upon in negotiating that first contract.

Debate begins

Over the next few weeks and months, EFCA will be debated on television and radio talk shows and will be the subject of countless editorials and op-ed pieces in newspapers and magazines throughout the country. Much of the opinion will come down either in favor of secret ballot elections or in favor of card checks. Notwithstanding this debate, the dispute over the traditional secret ballot election versus card check will likely be the subject of a congressional compromise.

For example, Sen. Arlen Specter (D-Pa.) (thought by many to be a key swing vote in the Senate on EFCA), recently indicated he does not support card checks or mandatory arbitration under the current version of EFCA although he supports shortening the election period. This compromise on the

card check issue could take the form of a “quickie” election that would take place from 14 to 21 days after a union files a petition with the National Labor Relations Board (NLRB) seeking an election. Currently, the NLRB attempts to schedule elections within 42 days after a petition is filed and in those elections, unions have a win rate of approximately 60%! The union win rate will likely soar to the 80% to 90% range, if the election period is significantly shortened.

Unfortunately, one or both of EFCA's two other major provisions, huge fines and mandatory arbitration, may very well survive all congressional wrangling. Therefore, if the only significant compromise on EFCA is the substitution of secret ballot elections with a quickie election process, EFCA will still provide unions with an unprecedented boost in organizing American workers at a very rapid rate. A quickie election process, coupled with huge fines for unfair labor practices committed during organizing drives, will have nearly the same effect as card checks, making it much easier for unions to organize. Could the number of unionized American workers double in three to five years?

Develop action plan

With various compromises among legislators, EFCA (or more likely a modified version of it) may very well be signed into law in the coming months. In fact, President Obama recently told a group of top American labor leaders: “We will pass the Employee Free Choice Act.” Therefore, it is essential for nursing homes to develop an effective strategic action plan to diminish the increased chances for unionization.

To combat the deleterious effects of the EFCA (which, by the way, will be the most anti-management law enacted since the passage of the National Labor Relations Act in 1935), the following tools should be used to ensure that employees do not seek redress for their employment issues elsewhere:

  1. Adopt a “proactive” employee relations philosophy. The days of being “reactive” are over. Ongoing communications to employees and performance-enhancing/team-building programs are essential. If an employee is performing poorly, the company should not wait until the termination meeting to tell that employee about a record of poor performance. Performance goals must be stated clearly and reinforced as often as necessary. Not only is it important for management to state its goals, but employees are eager to learn about those goals and expectations, for they have invested their time and ambitions in the workplace and in the culture of the company for which they work. It is important to remember that the three most important words for successful employee relations are: communication, communication, communication.

  2. Conduct union authorization card training for employees. This should be done even before signs of a union-organizing drive appear. In fact, it should be undertaken as part of the new employee orientation program. Explain to employees how union organizers may ask or even pressure them into signing authorization cards and what they can do to respond to those attempts. Employees should be informed that they do not need to pay union dues, ranging from $25 to $40 a month, to get what their company already provides: competitive wages, good benefits, fair treatment, and real job security.

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