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Friday, April 24, 2009

Employee Free Choice Act Update

Employee Free Choice Act Update – Procrastination is Risky
Reprint - Opelika & Auburn News, April 26

Lulled either by a false sense of security or by numbness stemming from the confusing messages related to the prognosis for the Employee Free Choice Act (EFCA), most employers are falling asleep behind the wheel. There are dramatically different very effective actions an employer can take now to stay non-union than after the EFCA in some form passes. While it seem that the cards are stacking up against the bill passing "as is," bubbles of compromise discussion have continued to surface, and even those who have said "no" to the bill, have typically qualified their "no" by specifying they are opposed to the current version of the bill.

Impact of the Employee Free Choice Act
  1. Gets rid of secret ballot elections in union campaigns. Under EFCA, your company can be forced to bargain with a union if a majority of employees secretly sign authorization cards in favor of a union (this is known as a “card-check”). As union organizers secretly penetrate your firm, your employees become victim to high-pressure and intimidation tactics to get cards signed and you will never know what is happening.
  2. Severe monetary penalties for employers. The “Free Choice” Act also changes the current “make whole” remedies for employer unfair labor practices into severe “punitive” damages, including things like double back-pay and $20,000 fines (per incident). These penalties could easily devastate a small employer.
  3. Mandatory arbitration to impose a union contract. The most shocking part of the “Free Choice” Act is its mandatory arbitration provision. If you don’t reach a “fast track” contract with a union then government-appointed arbitrators - with no special knowledge of your business - are required to force you into a labor contract even if it could put a company out of business.
Big Labor mogul Andy Stern, head of the Service Employees International Union (SEIU), is a political scrapper with Congress right now for the EFCA and vows that the bill will pass. Check him out on Wikipedia: He has recently reached an agreement with a rival union to split the proceeds of hospital organizing (nurses to service staff) in the State of Florida. He is also calling for Kenneth Lewis’s (CEO and Chairman of Bank of America) head on a platter. Why would a union be after Lewis? Big Labor is trying to capitalize on the controversy and consumer anger that the $$$ billions in government funding has created, to push their agenda for labor law change, specifically the Employee Free Choice Act. These attacks are all about card check. By accusing a major company of abusing consumers and workers, Big Labor stands to gain support in Congress for changes they are trying to push through.

Practical Counsel: Big Labor will not rest - there will be labor law change, whether it comes via one "big" bill like EFCA, a compromise bill, or a group of smaller actions. It will become much more difficult and very risky for businesses to overcome organizing attempts in the near future, and more businesses will be susceptible to secret union organizing campaigns than ever before. They must prepare now, or they will pay the price for their procrastination in the very near future. Step to Take Now to “Immunize” Your Company Against A Secret Union Organizing Attack:
  • Update you solicitation-distribution policy in your employee handbook
  • Conduct EFCA Awareness Training and Coaching Training for your Supervisors
  • Conduct Employee Surveys to uncover what needs to be corrected
  • Do work team round tables to identify problems and employee attitudes
  • Be transparent with your financial picture in employee meetings
  • Focus Groups across broad sections of your workforce to involve your employees
  • Encourage employee action committees out of focus group problem solving
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at