EFCA and a Little RESPECT - What You Can Do to Prepare

Introduction

I am astounded that so many of today's viable companies are failing to prepare themselves for the drastic changes that will likely be brought about by the Employee Free Choice Act (EFCA) [fn 2] and the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT). [fn 3] Although the jury is still out on the likelihood of their passing during this legislative session, one thing is for certain - unions will continue to work vigorously in order to ensure that this golden opportunity will not pass them by.

What Exactly is EFCA?

You have undoubtedly read dozens of articles and opinions about EFCA and its intentions. Depending on what side of the aisle you are on, you already have a firm understanding of the Act and its potential consequences. Simply put, EFCA would make it easier for unions to organize workers without your knowledge and quickly unionize your company. In fact, under EFCA, a union could effectively organize and file before it is even brought to your attention. Rather than provide you with yet another opinion on why EFCA should not become law, I will discuss how EFCA would affect your business and what you can do to prepare.

Another Caveat - The RESPECT Act

Before you delve into EFCA, you need to be aware that the current administration intends on adding yet another ingredient to the mix that will aid EFCA and its ability to circumvent the current process. In its most basic form, RESPECT would redefine the role of a supervisor thus making them eligible for bargaining [fn 4]. Currently, supervisors are exempt and considered part of a company's management. These change(s) would practically eliminate the position of "supervisor" as a legal classification and allow the unions to gain a powerful tool in the organizing process. The unions would add an element of your management to their membership and permit them to use union supervisors as a means to recruit subordinate workers.

EFCA and its Objectives

Once you sift through the rhetoric and study EFCA in its entirety, you will quickly understand how damaging this bill could be to your business. There are three (3) main issues proponents of EFCA want included in the package. First, they want to eliminate current secret ballot elections with "check-cards." Second, they want to fast-track negotiations into arbitration. And third, they desire substantial fines and punitive damages be imposed only on employers. Below is a quick comparison of the current law and what changes EFCA would create.

· Currently, an election is held if more than 30 percent of employees sign statements asking either for representation by a union.
· With EFCA, you are unionized if authorization cards are collected for 50% plus one of your employees, no election needed.
· Under current law, employees are afforded the opportunity to hear from BOTH SIDES during a campaign period.
· Under EFCA, employers will have no knowledge of the card collecting process nor would they be allowed to discuss the issue with their employees.
· Presently, any election held is supervised by the NLRB, which ensures that employees cast their ballots in a confidential manner.
· EFCA will implement a "check card" system that will be prone to intimidation and peer pressure by union organizers because employees will not be able to cast their votes privately.
· Under current NRLB rules, the union and the employer negotiate over a collective bargaining agreement that will define certain the wages, benefits and other critical workplace issues.
· Under EFCA, if an agreement cannot be reached within a specific amount of time, an arbitrator appointed by the federal government will resolve the dispute.
· For decades, both parties are required by law to bargain "in good faith" to try to reach an agreement.
· However, under EFCA, unions would have no incentive to negotiate a contract "in good faith." Union organizers could easily slow down the process to ensure that negotiations go beyond the deadline thereby mandating the appointment of an arbitrator.

EFCA & RESPECT - A Dangerous Combination

This combination is disturbing on more than one level. First and foremost, RESPECT will exacerbate an already coercive process in the securing authorization cards. As previously mentioned, an employee now has the right to a "secret ballot" election, which provides them with the ability to vote without fear of intimidation from the union or fellow employees. Not only does EFCA strip the employee of this right, but RESPECT would make that vote known to the employee's SUPERVISOR as well. Imagine a situation where one or more of your employees are asked to cast an open vote - the results of which are immediately known by those present including the union organizers, their co-workers and now their would-be union supervisor. No rational individual could believe that this employee would vote in opposition to the union if he wanted to remain in good graces with not only his co-workers but also more importantly, his supervisor.

In addition to the employee being coerced into a union he may not really need, the relationship between employee and supervisor would be forever skewed. Supervisors are routinely charged with making numerous decisions regarding their subordinates including scheduling, pay, vacation and disciplinary matters. Bear in mind that if your supervisors become unionized, they will then be required to act in the best interest of the union - not your company. Accordingly, you will be faced with questions never before anticipated. How do you engage those supervisors? What will be your policy on providing information to those individuals? Can you trust them to help you run your company? How will union supervisors affect your bottom line? How vulnerable am I to violating the NLRA? These and other compelling questions await you should RESPECT become law. The time is now to take action - you can take steps to prepare yourself for the inevitable.

The Current Issues - Their Anticipated Results

1. Secret Ballots Being Replaced by "Check-Cards"

This is the most widely publicized and debated proposal under EFCA. Generally speaking, EFCA will remove the current secret ballot system in favor of a check-card. Currently, an election is held when a union acquires signed authorization cards from at least 30% or more of employees. Although unions argue that the election process favors employers, this could not be farther from the truth. Unions routinely win over half of elections held and in 2008, they won about two-thirds of all elections held. [fn 5]

Under EFCA, if a union collected authorization cards for 50% plus one of your employees, your company would be instantly unionized. Moreover, you will have no knowledge of this process nor will you be allowed to discuss the issue with your employees. More importantly, the check-card system will be prone to increased intimidation and peer pressure by union organizers because employees will no longer be permitted to cast their votes privately.

Because EFCA will open the door for union representatives to engage in coercion and other pressure tactics, your employees will be subjected to not only harassment by those union representatives, but also intense peer pressure by their co-workers. Your workplace will experience increased levels of anxiety and strife between the non-union and unionized employees. It is also not unrealistic that employees may assert you have allowed a "hostile or intimidating work environment." Normally, this term is used in cases of sexual harassment, but I believe that courts will entertain such assertions for employees who can demonstrate hostility or resentment from other employees to include harassment and retaliation. Accordingly, you will notice an immediate decrease in productivity and an increase in tardiness, "no-shows" and claims of illness. Moreover, you may also experience a reduction in employee morale and an upsurge in workplace confrontations.

Your job is to implement some sort of "bullying prevention policy" so that it will be in place and apply to all employees, both union and non-union. Ensure that this policy is properly distributed and included in any future collective bargaining.

a. One Alternative to Check-Cards

Even if the check-card provision fails to pass, unions and their legislators are already proposing alternatives such as "quickie elections", a.k.a. "EFCA Lite or EFCA 2.0." Under this proposal, union organizers would be permitted to secretly organize employees in advance of any filing of an election petition. The union would be able to predict, with almost certainty, whether or not they would win or lose a "quickie election" against your company. Having this type of pre-emptive analysis would allow the union to modify its existing strategy or temporarily forgo that particular venue in favor of a more viable one. Either way, you will not have the ability to talk directly with your employees and you will be perceived as disinterested even though you had no knowledge of the attempted unionization.

Because you would be prohibited from discussing these and other serious issues with your employees, the organizers would then become the employees' sole source of information about unionization. The union would be free to make promises, misleading or untrue statements, or both without any rebuttal by you. Because the unions will forgo any negative views of unionization such as compulsory dues, the possibility of strikes (including their consequences) and even union discipline, the employees will not have a full understanding of the ramifications should they join.

After the union has spent weeks indoctrinating your employees, then, and only then would the employer would be allowed a relatively short period of time (rumored to be about 21 days, which is half of the 42 days currently allowed) to educate your employees about unions and to clarify or correct any distortions made by union representatives.

Regardless of when you are allowed to address your workforce, you will be at a huge disadvantage in trying to ascertain what issues were discussed and what distortions were made about you and your company. Since you will not be able to rely on your employees to be completely forthright about their discussions with union organizers, you will be up against overwhelming odds trying to convince your employees that the union may not be a quality alternative.

2. Binding Arbitration on First Contracts.

Under EFCA, if an employer were unable to reach an agreement within a set time frame (TBD) the issue would be ruled on by an arbitrator appointed by the federal government. No big deal, right? Wrong. Bear in mind that the President has recently announced his intention to nominate two union attorneys to become board members of the NRLB. Both nominees are long-time labor lawyers and senior members of the SEIU and the AFL-CIO. [fn 6]

Also take note that the President will have the ability to: 1. Appoint three individuals from his party to the staggered terms of the Board; 2. Designate one of them to be the Chairman; and 3. Nominate the General Counsel. If these appointments are confirmed by the Senate, there will be a Democratic majority on this powerful labor board for the first time in many years.

This of course would be advantageous to union organizers - and harmful for you. Union negotiators could slow down the process causing a stalemate in negotiations, which would lead to the mandatory intervention of the arbitrator. Unfortunately for you, this individual would have little or no experience in your particular business and has no incentive to ensure that your company is treated fairly. Moreover, the appointee will not be accountable for any mistakes or errors in judgment that would be part of a binding resolution.

Currently, and throughout our history, both labor and management have used certain options at their disposal in order to gain leverage and win concessions the most common of which are strikes called by the union and lockouts imposed by the employer. If EFCA is passed into law, then both the company and the union (employees) will be forced to accept terms and conditions that may or may not be in the best interest of all concerned. You (and your employees) should understand that your company is at the mercy of an arbitrator once negotiations come to a halt.

3. Increased Penalties Against Employers.

EFCA would impose significantly harsher penalties on employers found to be in violation of the NLRA. Employers who discharge an employee in violation of the NLRA while union organizing activity or bargaining for an initial contract is taking place would be liable for back pay/damages under the new law. EFCA would also impose a civil penalty of up to $20,000 for each unfair labor practice willfully or repeatedly committed by an employer during such times, in addition to any make-whole remedy already available under the NLRA. The difference? EFCA will not impose similar penalties upon unions found to have committed similar ULP's against you.

This proposal is designed to instill fear in the minds of small business owners. The mere chance that a company could commit an Unfair Labor Practice (ULP) [fn 7] and face substantial fines would be enough to cause any owner to surrender to union demands.

What You SHOULD Do

First, sit down with your management team and develop a comprehensive action plan. The type of plan you design will depend largely on the size and nature of your business; your venue (are you an "at will" state); your company history; and your ability (especially financial) to ward off a union campaign. If you have the means, create a "task force" comprised of senior managers selected from various departments to include IT, payroll & finance and of course, human resources. It is suggested that you do not include those "supervisors" who could eventually be reclassified under RESPECT.

Once you have your team in place, develop a position statement and disseminate it throughout your company. Ensure that this statement clearly defines WHY the company is confident a union is not in the best interest of all concerned. Depending on what bills are eventually passed, this publication may be your only opportunity to state your position to your employees. Make every assumption that your company is being targeted by union officials and the goal of your team is to make every reasonable and legal effort to prevent this from occurring. Bear in mind that if EFCA passes, the unions will begin targeting those companies that are the most vulnerable and any sign of weakness will surface.

What You Should NOT Do

By all means, refrain from any act that could be alleged to be a ULP. Examples of those actions can include, but not be limited to: Threatening employees with loss of jobs or benefits if they join a union; promising benefits to employees to discourage union support; transferring, laying off, terminating or assigning employees more difficult work tasks because they engaged in union activity.

Understand that EFCA will provide for not only more stringent penalties for companies who are found to be in violation, but this determination is SUBJECTIVE and will be made by a NLRB employee.

What You CAN Do

a. Analyze

The best time to conduct a study is BEFORE something happens. Charge members of your task force with making an overall assessment of their department and your company. Have your team identify any vulnerable spots in your employee structure, why those weak links exist and remedy those problem areas quickly but effectively.

Union concerns are usually workplace safety, improved benefits and wages, better working conditions and increased job security. For example, an operations manager may determine that a certain piece of machinery is consistently breaking down causing employees to work harder and under hazardous conditions. Remember all the union needs is one disgruntled employee and they are in the door.

You may also consider tightening security in order to eliminate the use of company computers for non-business related activity. Bear in mind that this type of ban must be uniformly applied [fn 8] and if implemented, make certain those changes are published throughout the entire company.

b. Educate.

Provide instruction to your managers on how to maintain a union-free work environment. Once you understand the various reasons why employees seek out unions (and why unions are drawn to them) you will be able to identify early warning signs of potential union interest.

Start by educating your employees about the significance of signing a union authorization card. Workers need to understand that signing a card is similar to signing a power of attorney and giving up their right to voice their individual opinions or deal directly with company management about their issues. You can also inform workers that once they become a union member, they are subject to various forms of corrective action by union management to include discipline and fines. In addition, once members select a representative, even those workers who do not belong to the union are bound by the collective bargaining agreement and are prohibited from negotiating individual contracts with the employer. [fn 9] Stress that union representation does not guarantee increases in wages or benefits and add that if both sides are compelled into arbitration, they may in fact receive less in certain areas.

Again, stress to your employees that once they go union, they will be bound with whatever work conditions are agreed upon under collective bargaining or worse, those mandated by the aforementioned government arbitrator. Remind them that should they later determine that the union is not in their best interest, ridding themselves of the union as a whole will be difficult, if not impossible.

b. Document, Document, Document.

Whatever your strategy, make sure that you properly document every decision and action taken by management including any past and pending disciplinary action; proposed changes in employee benefits to include compensation, insurance and retirement plans; changes in your policies and procedures; reclassification of employees - you get the idea. Make sure that you have a valid reason for making such changes (i.e. that corrective action was completely justified; that employees are getting better health coverage by changing providers; that the company can demonstrate lower turnover and increased succession since implementing new guidelines). If and when you are called on to justify your actions, you will be prepared to defend those choices.

Instruct your managers to document and subtle or obvious changes in behavior by their employees. Indicators that union organizers may be present are employees who meet in abnormal places and meet frequently with different people and employees who are considered "leaders" are now seen as followers or outcasts. They may notice workers from different departments begin to meet regularly. There are also outward indications that a union may be present. Excessive and abnormal absenteeism; complaints from a group of employees rather than one person; and employees who ask repeatedly questions about company policies or guidelines.

c. Training.

Provide your team with the latest information regarding EFCA and RESPECT as well as relevant updates to NLRA. Make sure that you clearly define your objectives to the team and ensure that they understand the negative impact a union could create. If necessary, have counsel or HR personnel train your managers so they are capable of answering questions posed by their employees. In conjunction with this, your company should immediately being networking with groups and organizations that are opposed to EFCA and companies who have remained union-free.

You should have a workplace violence plan, policy, or training program in place. Train supervisors (and yes, RESPECT supervisors) to identify and report inappropriate or unauthorized behavior. Make it clear that unauthorized behavior will not be excused and will taken seriously. Appoint someone to document and track this (and other plans) and to adjust when deemed necessary. If you have not done so within the past year, begin a regimen of training classes in labor law and unions, sexual harassment, EEO, etc. Review and update your orientation program with a focus on being union-free, workplace succession and other positive traits within the company. Employees who are properly informed and trained consider themselves part of the team and may not feel the need to search for a sense of belonging (a union).

d. Develop a Response.

Don't wait for a union representative to come knocking on the door before you arm yourself and your employees with the understanding and knowledge needed to ensure that the union representative is acting within the law. As previously mentioned, educate your employees so not only can they understand what a union is all about, but also to ensure they can identify and report various forms of harassment, coercion, or any other illegal or unscrupulous tactic used to "force" them to sign an authorization card.

Include your security department in any response plan. Employers who have in-house security should ensure security managers are kept abreast of all recent developments and should be required to attend all "task force" meetings. Companies who sub-contract their security should keep confidential information to a minimum due to the fact that select security officers are unionized.

Conclusion.

Make no mistake. The current administration and union lobbyists are working diligently to implement these unprecedented changes by using the check card proposal and other provisions. The facts are that EFCA and RESPECT will do nothing more than reduce the overall production of viable companies and force small business owners to go under. Your responsibility is to ensure that if this occurs, your company will be prepared to successfully contest a union campaign or minimize any damage as a result of a union addition.

Footnotes

[fn 1] The author is a HR/ER consultant. Contact @ jlstarnes@bellsouth.net.

[fn 2] The "Employee Free Choice Act" (EFCA) H.R. 1409, §560. This Act was originally introduced on March 10, 2009 in the 111th Congress. The latest bills introduced in both houses of Congress are similar to last year's bill, which passed the House but failed in the Senate due to a filibuster.

[fn 3] The "Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers" (RESPECT) H.R. 1644, §969.

[fn 4] Section 2(11) of the NLRA presently defines "supervisor" as: Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay-off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 USC §152(11).

The RESPECT Act would change the definition of "supervisor" by altering Section 2 (11) in the following three ways: Striking the word "assign"; striking the phrase "or responsibly to direct them"; and inserting the phrase "and for a majority of the individual's work time" after the phrase "in the interest of the employer."

[fn 5] Sam Hananel, Associated Press - Published on Thursday, May 07, 2009.

[fn 6] Craig Becker has been Associate General Counsel for the Service Employees International Union (SEIU) for 17 years and works within that same capacity for the AFL-CIO. Becker earned both his law school and undergraduate degrees from Yale in 1981 and 1978, respectively. For the past 27 years, Becker has taught and practiced labor law.

Mark Pearce has also practiced union-side labor law for a large portion of his career. In 2008, the New York State Governor appointed Pearce to serve as a board member on the NYS Industrial Board of Appeals, an independent, quasi-judicial agency in charge of reviewing certain rulings and compliance orders issued by the NYS Department of Labor. According to his law firm's bio, Pearce has also served on the Board of Directors of the Lawyers Coordinating Committee of the AFL-CIO, and is a member of Cornell Adjunct Faculty -Upstate, New York State United Teachers Local # 37-950, an affiliate of American Federation of Teachers (AFL-CIO). Pearce received his law degree from the State University of New York, and his undergraduate degree from Cornell University.

[fn 7] 29 U.S.C. §158.

[fn 8] Media General Operations Inc. d/b/a Richmond Times-Dispatch v. NLRB, Nos. 06-1023, 06-1061, and 06-1213 (4th Cir. March 15, 2007). The court found that that an employer violated the NLRA by prohibiting employees from using its e-mail system to discuss union matters while allowing employees to send e-mails concerning other personal and non-work-related matters.

Jeffrey L. Starnes, J.D.
Associate Partner
Noland & Associates

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