Philadelphia – March 19, 2009 – Most employers are aware of the Employee Free Choice Act (EFCA), proposed legislation that would make it dramatically easier for unions to organize workers and obtain favorable terms in a first collective bargaining agreement. While much money and political effort supports the proposed legislation, employers can take many prudent and cost-efficient steps now to be prepared and to improve their workplaces and their relations with their employees, according to Pepper Hamilton LLP, a multi-practice law firm.
On March 10, Sen. Tom Harkin (D-Iowa), member of the Senate Health, Education, Labor and Pensions Committee, and Rep. George Miller (D-Calif.), chairman of the House Education and Labor Committee, introduced the Employee Free Choice Act to Congress.
“EFCA did not make it through Congress in 2008, but if the bill makes it through Congress this year, President Obama has vowed to sign it,” said Jonathan Kane, chairman of the Pepper Hamilton LLP’s Labor and Employment Group
“If EFCA is passed, it will change labor relations dramatically, making it extraordinarily easy for unions to organize in traditional sectors and in many other sectors of the service economy.”
Kane explained that under the current National Labor Relations Act (NLRA), unions organize workers through the secret ballot election system and then bargain collectively with employers.
“As proposed, EFCA would change that by allowing the National Labor Relations Board to certify a union as an employee unit’s exclusive bargaining representative after a union convinces a majority of employees to sign union authorization cards or a petition,” said Kane. “EFCA also would allow the union to demand that the employer participate in mandatory arbitration for a first contract, which would allow a third party to dictate terms of the agreement – with potentially disastrous economic consequences for employers.”
“Given the ease with which a union could organize through a petition or card-signing campaign, a thorough re-evaluation of company policies, procedures and practices is essential,” Kane stressed. “A company that knows it is being targeted for unionization should immediately take steps to ensure a healthy environment for relations with employees.” To that end, he suggests:
-- Start with an accurate, honest review and assessment of policies and
practices, compensation, management training, communications
systems and problem-solving procedures. “An internal self-serving
review is not only a waste of time, but can be counterproductive in its
failure to identify real problems and their causes,” said Kane. “External
reviews are much more accurate and do not cover up blemishes.”
-- Identified problems must be corrected.
-- Next, ongoing auditing and surveys should ensure that the employer’s
policies, practices and procedures continue to be assessed and
corrected in the future.
-- Cooperative or collaborative committees or groups comprised of
management and employees also promote positive employee relations.
According to Kane, in his experience, the committees are effective:
“Unions so strongly oppose them because, if used well, continually
and legally, the committees can eliminate the unions’ element of surprise,
as the committees serve as an excellent early-warning system that will
alert the company of employee unrest.”
-- Further, companies in multiple locations should have their labor counsel
review all the sites to determine which of them would be an “appropriate
unit” under the National Labor Relations Act. “It may be possible to
take action to ensure that the 'only appropriate unit’ consists of multiple
sites,” said Kane. “So even if a petition or cards are signed at one site
without the employer’s knowledge, it would be extremely difficult for a
union to extend that successful organizing to another site or organize
multiple sites successfully from the outset.”
“Employers should not wait to undertake these types of reviews and actions to improve their workplaces,” Kane concluded.
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