E-Newsletter

November 2008

Union Organizing: Obama Winds and So Does the Employee Free Choice Act (EFCA)

Get ready for an increase in union organizing campaigns. When? Sooner rather than later. President-elect Barack Obama and Vice President-elect Joe Biden both co-sponsored the Employee Free Choice Act (EFCA), legislation that will amend the National Labor Relations Act to allow a union to organize employees on the basis of signed cards versus a secret ballot election.

During his campaign, Obama stated that America needs

"[a] President who strengthens our unions by letting them do what they do best, organize our workers" and that "[i]t is time to pass the Employee Free Choice Act in the Senate and I will make it a law of the land when I am President of the United States of America."

Further, this will be a mandate with the Democrats controlling the House and Senate. House Democratic seats increased from 235 to 251 while the Republicans lost 26 seats and reduced their count to 173. In the Senate, although the Democrats did not achieve the 60 seats needed for a filibuster-proof Senate, they did pick up 5 seats for a majority of 56 to the Republicans 40 seats. The remaining 4 seats are either held by independents or still have not been determined.

The EFCA was previously passed by the House by a vote of 241 to 185 and had majority support in the Senate. Now, the 44th President will not only sign the bill into law, he will actively encourage its passage in Congress. Organized labor, the Teamsters, the AFL-CIO, the Change to WIN, the SEIU and others will call in their markers for the payment of the millions of dollars they gave to Obama, along with the thousands of union volunteers. This is Obama's quest for change and, remember, in his prior life he was a community organizer. Get ready!

The EFCA, as proposed by Obama and Biden, would provide:

1. Card check v. secret ballot election; no notification to employers and no withdrawal of authorized cards---once signed, an employee cannot revoke his or her card.
   
2. Mandatory mediation with the Federal Mediation and Conciliation Service (FMCS).
   
3. After 120 days, if no collective bargaining agreement (CBA) has been reached, then the FMCS will appoint an arbitrator.
   
4. An arbitrator will impose on the employer what he or she believes the wages, hours and other terms and conditions of employment should be.
   
5. No ratification of the contract by employees.
   
6. The Collective Bargaining Agreement will be for a period of 2 years.
   
7. Mandatory injunctive relief against employers for committing unfair labor practices under section 10(l) of the National Labor Relations Act (NLRA).
   
8. $20,000 fine for each employer violation of the NLRA.
   
9. Reinstatement of employees who are unlawfully terminated under the NLRA with triple back pay.
   

What should employers do and when?

1. Take a positive approach and conduct managerial and supervisory training---now.
   
2. Establish your organization as a world-class employer with a culture of not signing documents without knowing all of the information.
   
3. Understand the negatives of having a union and be aware of signs of union organizing.
   
4. Build relationships with employees; remember that an employer is only as good as its relationship with its employees. Use job evaluations and other tools for building relationships.
   
5. Establish a culture of trust and open dialogue.
   
6. Commit to your organization and employees; develop an "Open Door" policy and an effective Peer Review Process.
   
7. Use employee attitude surveys and self-audits and understand irrelevant assumptions and generational differences.
   
8. Review win-win values to make unions unnecessary and eliminate barriers to effectiveness.
   

Besides auditing the current environment, culture, policies and problems, it is essential that an employer conduct both strategic and tactical planning to achieve short-term and long-term goals.

The EFCA is just the beginning. Watch for even more legislation related to employment issues, including: The Respect Act; The Working Families Flexibility Act; The Equal Remedies Act of 2007; The Lilly Ledbetter Fair Pay Act; The Paycheck Fairness Act; Civil Rights Act of 2008; The Forewarn Act of 2007; The Independent Contractor Classification Act 2007; The Arbitration Fairness Act of 2007; and The Military Family Job Protection Act. Balance this with the passage of the amendments to the Americans with Disabilities Act, which will become effective on January 1, 2009.

If you have any questions about union organizing or other employment law issues, contact Krukowski & Costello, S.C.'s educational services department at (414) 423-1330.