Identifying employee issues and concerns in order to avoid workplace turmoil is a top priority of any human resource department. An alarming byproduct of employee discontent for any human resource manager is having to deal with the prospect of employees looking outside the organization for representation, namely union representation. Proposed changes to Federal labor law could radically change the landscape of union organizing almost overnight, giving unions the upper hand over non-union employers. The Employee Free Choice Act (EFCA), which stalled last year in the U.S. Senate, would enable unions to no longer have to piece together expedited organizing campaigns, such as Card Check Agreements, because the EFCA would make the intent of such agreements the norm. It’s the goal of organized labor to refocus their efforts on revitalizing the EFCA as early as 2009 and they are confident they can get it passed this time around, if they can get the support in Washington that they fully expect.
BACKGROUND ON EFCA
The Employee Free Choice Act would amend the National Labor Relations Act (NLRA), which is currently the set of Federal labor laws that govern the relationship between unions and employers in the private sector. Currently, the NLRA allows for secret ballot elections that enable employees to decide whether or not they wish to be represented by a union. While the NLRA allows for Card Check Agreements between unions and employers, the preferred and standard means of determining the question of representation is through a secret ballot election. The Employee Free Choice Act would change all of that. The EFCA would eliminate the secret ballot election in favor of a card check. Simply put, employees would only have to fill out a card and if a union can get a majority (50% + 1) of these cards signed they would automatically become the bargaining representative of the employees. On its surface some may think that this is just a simplified method of determining a unit of employees’ desire to be represented by a union. Yet within the ease of this process therein lies the danger for an employee or group of employees who have not been fully educated on the risks and realities of union representation. As any labor professional can attest to, unions have a relatively easy time getting individuals to fill out union cards, commonly referred to as authorization cards. It is also not uncommon for union organizers or union supporters to not fully disclose what it means to an individual who fills out one of these cards. That is why there is such value in the secret ballot election process, because regardless of what an employee filled out or said in the past, they can vote for union representation or against union representation with no consequence. The process of a card check does not afford employees the same latitude. It does however make the job of a union organizer much easier.
RISKS TO EMPLOYERS & MANAGEMENT TEAMS
With a law like the Employee Free Choice Act in place the continuum of labor organizing, from employee discontent to representation by an outside third party is significantly shortened. Employers would be forced to be much more proactive in uncovering employee issues and concerns because if a union organizer(s) approached employees or enough employees (50% + 1) at the right time then the organizer(s) could use employee frustrations and become their legal bargaining representative almost immediately. Think about the possible scenarios, a new attendance policy is rolled out and by the end of the week employees are up in arms over it, come Monday an employer could be facing a group of legally represented employees seeking to negotiate new terms and conditions of employment and threatening work stoppages in the process. A scenario such as this would have dramatic implications for both an employer and their management team. In addition, the EFCA would carry more severe punishments for managers and supervisors who knowingly or unknowingly violate the law and commit what’s known as an Unfair Labor Practice. Under the current set of laws outlined under the NLRA an Unfair Labor Practice does not carry severe penalties for managers and supervisors who violate the Act. However, the EFCA would change that. The EFCA also calls for more severe punishments for committing Unfair Labor Practices, such as back pay plus liquidated damages to individuals and additional civil penalties for the managers and supervisors who are in violation of the Act.
Now more than ever, it is crucial for employers and management teams to understand their rights and responsibilities under Federal labor laws and more importantly understand what actions constitute an Unfair Labor Practice. It is also important for employers and management teams to recognize the early warning signs of an organizing campaign and conduct employee relations’ assessments to determine if they have vulnerabilities, before activity begins.