Saturday, April 25, 2009

Will My Company Be Ready If the Employee Free Choice Act Becomes Law?

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From the Home of Arlen Specter

Today's guest post was provided by Eric B. Meyer, with the generous cooperation of his colleague --Jennifer Platzkere Snyder, Esquire. Jennifer is a Partner with the law firm Dilworth Paxson LLP in Philadelphia, PA. She writes about preparing your business for The Employee Free Choice Act .

As you no doubt know, the Employee Free Choice Act (“EFCA”) is one of the most controversial bills currently pending in Congress. A proposed amendment to the National Labor Relations Act, it promises to revolutionize relations between employers and employees – and not necessarily for the better. If passed, EFCA would eliminate the secret ballot election process in favor of a “card check” system, subject parties to binding arbitration when they cannot quickly negotiate a first contract, and significantly heighten penalties for unfair labor practices committed by employers. Employers should be particularly concerned because, under EFCA, unions could blindside employers with a surreptitious organizing drive culminating in a “check” of authorization cards signed by a majority of employees – before an employer has any idea that the organization drive is underway and before an employer has any opportunity to discuss the pros and cons of unionization with its employees.

So, what can you do now to prepare, knowing that EFCA – or one of the other alternative proposals under consideration – may become law? First and foremost, you should immediately assess your company’s vulnerability to an organizing effort by considering the following:

Communication: Do managers listen to employees? Is there regular, constructive two-way communication between managers and employees? Do employees have good reason to believe that management is interested in them and concerned about them as individuals? Do employees feel valued and part of the team?

Management: Are managers and supervisors credible to the employees? Are progress reviews being held regularly and, where applicable, according to policy? Are they completed objectively and fairly? Do employees feel that they are involved in the process?

Policies: Are company policies and procedures documented in writing? Are employees aware of them? Are they followed in an evenhanded, non-discriminatory manner?

Hiring and Firing: Is care being taken with regard to discipline and terminations, making sure that each is fair, well-documented and thoroughly justified? Is care being take with regard to new hires to see if their backgrounds are compatible with company expectations and their references support their employment?

Workforce Awareness: Do employees understand the legal significance of union authorization cards and the current secret ballot election process? Are supervisors prepared to respond effectively to unionization efforts within the boundaries of the law? Will employees be prepared to protect themselves against potential pressure from union organizers – or their co-workers – to sign cards?

Right now, news of an organizing petition serves as a warning call to employers, providing several weeks advance notice of an election and giving them time to address employees’ concerns which prompted the unionization effort. If EFCA passes, there will be no warning call. There will not be time to answer these questions. There will only be an incumbent union. And a duty to bargain. Quickly.

Not surprisingly, businesses and business groups across the country have already declared war on EFCA, calling the legislation “flawed”, “a clear violation of employee rights,” and an attack on “the very foundation of our democracy.” Particularly in light of the current economic climate, they are as committed to defeating EFCA as organized labor is to passing it.

It is still expected that EFCA will pass in the House of Representatives, and heated debate will be saved for the Senate. Though many senators once thought to support EFCA have backed away from it, even they favor more modest amendments to the National Labor Relations Act – to ease the burdens on unions in organizing workers, to provide additional protections to workers who favor unions from discipline or discharge, and/or to preclude parties from negotiating for a contract indefinitely. Thus, even if EFCA is not passed in its current form, some type of labor law reform is likely later this year.

It is often difficult to be truly objective about your organization’s vulnerability to an organizing drive. Accordingly, training and outside assessment can be keys to success in maintaining your independence in employee relations and freedom from third-party unions. Educating managers, supervisors and employees today about the implications of the EFCA of tomorrow is the best way to keep your organization union-free.


Jennifer Platzkere Snyder, Esquire, is a Partner with the law firm Dilworth Paxson LLP in Philadelphia, PA, where she specializes in labor and employment law. She can be reached at

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