EFCA, Politics and Union Strategies - Summary of Recent Developments

The Political Game and a Curve Ball

Political battles and maneuvering followed the March 10, 2009, introduction of the Employee Free Choice Act (EFCA) in both the Senate and the House of Representatives. If passed, EFCA will radically reshape U.S. labor law for both employers and employees. Organized labor believes the stars are aligned for EFCA to become a reality because 1) President Obama was one of EFCA's original sponsors as a Senator, 2) President Obama has pledged that he will sign EFCA into law and 3) Democrats control both houses of Congress. A Republican filibuster could disrupt organized labor's agenda, but that can be overcome with 60 votes in the Senate. Sixty votes would require one or more Republicans joining the Democrats.

Arlen Specter (R-Pa.) had supported EFCA in 2007 and organized labor and the Democrats were counting on his continued support. But recently, Specter threw them a curve and said he would not be supporting EFCA now. Specter stated, however, that he would reconsider his position after the economy recovers. Now, Democrats need to obtain the support of at least one other Republican as well as keep their 58 senators behind EFCA.

Democrats Vow EFCA Is Not Going Away

Politics are notoriously unpredictable, but Specter's announcement is a blow to organized labor's hopes of passing EFCA in the immediate future. Notably, however, Senate Majority Leader Harry Reid told reporters that Specter's decision will not "make [EFCA] go away" and that Specter is "not the only Republican that has indicated a willingness to consider something being done." Pro-labor groups also say they will continue to lobby Senators vigorously, including Specter, to obtain EFCA's passage. So the fight goes on.

Why Every Employer Should Care

Unions used to represent 40 percent of the U.S. workforce. That has plunged to just 7.6 percent in the private sector today. Organized labor desperately needs new members, and EFCA will help them do just that. Even without EFCA, unions are moving aggressively into virtually every sector (not just manufacturing), including retail, service, hospitality, health care, logistics and financial among others. In addition to production and maintenance employees, unions are trying to organize clerical, administrative, engineering, sales, custodial, warehouse and every other type of employee they can. No private sector employer is immune!

How EFCA Would Help Unions Organize You

As proposed, EFCA would require employers to recognize a union if it gets signed authorization cards from a majority of the employees comprising the bargaining unit (card check). The longstanding process of secret ballot elections would no longer be required. This eliminates anonymity and true free choice, opens the door to peer pressure, and denies employers the opportunity to educate employees on risks and downsides of unionization. The end result would be a massive increase in union organizing and a projected tripling of unionized workplaces.

The bill also provides for mandatory mediation if employers and newly certified unions fail to reach a contract within 90 days. If no labor agreement is reached after 30 days of mediation, a government-appointed arbitrator would decide what wages and benefits the employer must provide (regardless of whether it places the employer at a competitive disadvantage). Even worse, the arbitrator-dictated contract would be effective for two years.

No Matter What Happens, Unions Will Be Ready - Will You?

No matter what happens with EFCA, unless employers are prepared, they may be unpleasantly surprised. In anticipation of EFCA, many unions have been quietly getting employees to sign union cards seeking to get over 50 percent signed in advance. (Union cards are good for one year or sometimes longer, so this may have been going on for several months.) Unions want to position themselves for a "win-win" opportunity. If EFCA passes, they're ready to spring and obtain immediate recognition. If EFCA does not pass, unions will be positioned to file many petitions for an NLRB election based on the cards they surreptitiously are getting signed now. One way or the other, many employers may get a rude awakening. Even if EFCA is modified through political compromise, make no mistake, it will contain provisions that are pro labor and make it easier for unions to organize your employees.

This is why many employers are taking steps now to protect themselves. Planning and preparation can pay big dividends whether or not EFCA is passed or modified. Those employers who prepare now will be better able to maintain their non-union status.

What We Can Do To Help You

Baker & Daniels' 50+ member labor and employment team has been working with clients across the United States to develop strategies to protect them in what could be a very union friendly environment. Items in our Tool Kit include:

• Presenting seminars and webinars to educate management about EFCA and what they can do now to prepare no matter what happens.
• Training supervisors on how to spot signs of union activity and how to respond to it.
• Conducting union avoidance training for organizations that never thought they would be vulnerable to unionization, who now realize it will be "open season" for unions against all employers, regardless of industry, sector or location.
• Performing on-site "supervisory audits" that analyze employee relations issues and management team quality and then develop an action plan to address identified problems before a union is able to exploit them.
• Scripting videos or live presentations about EFCA, card signing and downsides of unionization to be used with existing employees and in new hire orientation.
• Drafting "union free," internal complaint, no distribution/no solicitation, electronic communication and other helpful handbook policies that promote union avoidance.
• Reviewing existing policies and practices to ensure they do not give unions ammunition to use against you and to take advantage of recent pro-employer board rulings.
• Drafting "employer friendly" contract proposals because under EFCA an employer would need to start bargaining within 10 days of the union's request. Most employers are not equipped to develop effective proposals and be prepared to bargain on this short timeline.
• Creating unique defenses that will assist certain employers in preventing an arbitrator from imposing wage or benefit increases that are more costly than the employer can afford.