Educate Your Employees on EFCA

Employers must prepare themselves for the possibility that the Employee Free Choice Act (EFCA), also known as Card Check, or some version of it, will become a reality. This legislation, already approved by the U.S. House of Representatives in the last Congress and likely to come up for a Senate vote later in 2009, would amend the federal National Labor Relations Act.

If passed and signed into law, it would dramatically change the way unions organize workers and how unions and employers negotiate initial collective bargaining agreements.  So what steps should your small business take to prepare for EFCA?

No more secret ballots
The EFCA would eliminate the current secret-ballot process by which employees choose to be represented by a union. In its place would be what’s known as a card-check system.  Employees who sign cards would not have a right to vote if the union got a majority of employees to sign up.  Now, unions can use cards to get elections, and employees can hear all sides of the issue and then vote in secret.  If EFCA passes, elections will become things of the past.  Employers will find themselves with a union before they even know a union is approaching their employees.

One step you can take is to correspond with your employees and their spouses regarding the meaning and importance of authorization cards, including identification of misleading tricks used by organizers to get signatures.

Additionally, meet with your employees regarding authorization cards, and identify techniques they can use to deal with aggressive union organizers without compromising their personal views or actually giving in to a request to sign cards or petitions.

Employers face stiffer penalties
Under the EFCA, employers would face stiffer penalties for unfair labor practices, including what are essentially triple damages for conduct determined to be unlawful during the bargaining process for the first labor agreement.

A few things that you can do to protect your small business include:

• Clearly communicate your company’s stance regarding unions in handbooks and policies to counter the potential union argument that the employer does not care or would welcome a union.
• Take steps to ensure that existing rules are adequate to manage the workplace; make necessary changes in the rules if they are not. Make those changes before a union appears on the scene.
• Carefully enforce rules even-handedly, and do not let problem employees evade appropriate discipline.
• Handle workforce changes thoughtfully, whether increasing or decreasing numbers.
• Follow established procedures regarding resetting wages and benefits generally and consider changing your system if it no longer suits your workplace.

Surviving a union strike or corporate campaign
While it’s impossible to predict whether or when or in what exact form the EFCA will be enacted, it is smart for employers to get ready now in case it does. If the EFCA becomes law, there may be little time to train your managers and supervisors on how to communicate properly with employees, or to have a backup plan in place if your business faces a strike.  In fact, in many areas of the country, unions are already getting cards signed and are “stockpiling” them in case EFCA passes.
A few measures you can take to make sure your small business is prepared to handle a union strike or corporate campaign include:

• Exercise great vigilance regarding union activity in your workplace or in the local area or in your industry, or with particular customers, suppliers or competitors. This is an indication that you may already be a target.
• Review contracts and work arrangements so as to be sure the company is structured to withstand a union strike or corporate campaign, including discussions with customers and suppliers about their view of the potential for strikes and other disruptions. If your best customer will stand by you if you suffer a strike, that’s important to know; likewise, you (and your employees) need to know if that customer will permanently pull all its work on the first day of a strike.
• Consider establishing alternative means of producing or providing the company’s products and services and communicate the general existence of such alternatives to employees.

There are many other steps you might take, depending upon your individual, unique circumstances and the advice of your employment counsel.  Now-before your employees make a decision that has dire consequences for their work lives and your business– is the time to educate yourself and your employees on the realities of working in a unionized environment.

Keith Ashmus is a co-founding partner of Frantz Ward LLP, an entrepreneurial law firm formed in 2000 and recently named one of Ohio’s top 50 law firms.  Frantz Ward is one of Ohio’s top-tier employment firms as rated by Chambers USA.