IRI Intelligence Briefing

News and Developments Affecting the Workplace

Volume Number & Date: 
Vol. 1 No. 8 - October 2008

EFCA - Not the End of the World, Just a Category 5 Hurricane

Why Unions Want It?

For unions trying to organize workers, which of these two methods offers the path of least resistance?

NLRB-Supervised Election

  • Spend months convincing employees to sign petitions asking for an election to decide whether they want to be represented by a union;
  • Submit the petitions to the NLRB to determine if they're valid;
  • Once the NLRB approves the election petitions, spend months and between $2,000 and $3,000 per employee convincing them that they should vote to join the union;
  • Wait as employees privately cast ballots for or against unionizing in an election supervised by the NLRB.

Card Check

  • Convince 50 percent of a business' employees to sign cards or petitions that say they support the union.

Because the difference is so obvious, unions - and the members of Congress who rely on the $300,000,000 that labor reportedly will spend this election cycle to get elected and re-elected - have made enactment of the Employee Free Choice Act (EFCA) one of their highest priorities of 2009. Recent articles in the Wall Street Journal, BusinessWeek and elsewhere suggest passage is a certainty if a Democrat is elected president and Democrats widen their margins in Congress. (In fact, if Democrats gain veto-proof, two-thirds majorities in both the House and Senate, it won't matter which party wins the White House.)

What's in a Name?

Unions and their supporters are marketing the "free choice" act as a boon to workers supposedly yearning to become union members. Organizers say the NLRB-supervised election process is too burdensome and gives employers an opportunity to pressure workers against voting in a union.

But unions already win in excess of 50 percent of secret ballot elections. In the first six months of 2008, unions won 74 percent of representation elections in healthcare, and 66 percent in non-healthcare (both are the highest success rates in 10 years).

In the relatively few instances where businesses agree to card check - usually as the result of a brutal corporate campaign - union win rates with card checks are nearly 100 percent. Union win rates for neutrality and "fair election" agreements typically exceed 80 percent. For the first time and pursuant to a court ruling last year, the NLRB is tracking requests for voluntary recognition by way of card check. In the last 12 months, unions have submitted more than 300 of these VR petitions.

"Following the money" - determining who would benefit most at the bottom line - indicates the labor movement's true motivations for EFCA.

American union membership reached its peak in the 1950s, and has steadily fallen ever since. By the end of 2007, overall U.S. unionization stood at 12.1 percent, with only 7.5 percent of private sector employees represented by a union.

For unions, fewer members equates to:

  • Less union revenue
  • Lower union executive salaries
  • Smaller paid union staffs
  • Less money for political support
  • Less political clout

By increasing union membership, all these factors reverse. How effective could EFCA be? Service Employees International Union (SEIU) President Andy Stern claims that EFCA could add as many as 20 million new members in fairly short order.

There are two provisions in the EFCA that would change labor relations more than anything since the Taft-Hartley Act of 1947:

1) The virtual elimination of secret ballot elections has drawn the most attention. Two implications make the bill especially effective for unionization:

  • Whereas the NLRB election process gives employers time to communicate their views about unionization with employees, card check drives could be over before employers know they exist.
  • At the same time, because union organizers can "cherry pick" the employees they think likeliest to sign, many employees might never be contacted, and would never know what the union is up to.

2) Equally as onerous as EFCA's card check provisions are the sweeping "fast track" changes it would make to the collective bargaining process:

  • Once the union is in place, bargaining must begin 10 days after the union asks for it.
  • If union and management are at an impasse after 90 days of bargaining, the Federal Mediation and Conciliation Service (FMCS) would step in to bring them together.
  • If the two sides are still at odds after 30 days of mediation, FMCS would appoint an arbitration board whose order - "agreement" - would be in place for two years.

Altogether, EFCA not only would strip employees' right to privacy, but also deny free speech privileges and the right of employers to control wages, benefits, work rules, scheduling and other operational and financial matters. Former Democratic Senator, presidential candidate and staunch labor supporter George McGovern speaks plainly:

Instead of providing a voice for the unheard, EFCA risks silencing those who would speak. Under EFCA, workers could lose the freedom to express their will in private, the right to make a decision without anyone peering over their shoulder, free from fear of reprisal. To fail to ensure the right to vote free of intimidation and coercion from all sides would be a betrayal of what we have always championed.

What Can Employers Do?

  • Develop a clear, concise policy describing where your organization stands on unionization. Ensure that everyone understands it, starting with your board of directors and senior management.
  • Make comprehensive changes in your workplace that become part of its culture. Create an environment that makes employees believe they have a great place to work and don't need a union. The goal: when a union organizer comes calling with a card or petition to sign, your employees say "no thanks."
  • Create employee advisory groups that help you get wind of dissatisfaction before its gets out of control. Dissatisfied employees quickly can come to believe that a union is the only answer.
  • Implement an alternate dispute resolution process so that employees who have grievances can get them taken care of quickly.
  • Ensure that all employees are engaged in the day-to-day operation and long-term success of the organization. If employees believe there's an us/them attitude in their workplace, they're prime targets for union organizers.
  • Every organization communicates from the top down; that's how things get done. The best businesses know that bottom-up communication is just as important. Employees know - generally - what you want; do you know what they want?
  • Supervisors give orders, provide direction. Do yours also know how to communicate in a way that not only ensures work gets done properly, but that makes employees understand why it should be done a certain way? Do they know how to take constructive criticism and make changes suggested by their subordinates? Communicating "why" and listening to employee suggestions are key elements of engagement.
  • Washington has been awash with lobbyists for both sides of the issue since EFCA (HR 800, as it's technically known) was introduced in 2007. While lobbyists hold enormous sway, legislators do pay attention to constituents. Letters, phone calls, e-mails and, best yet, personal visits from employers and local community leaders could help delay or kill the bill. Your message should be what's wrong with the bill for your employees, your community and your business.
  • Your employees are just as important an audience as your Congressional team. Every employer has a right to communicate with its workers about important legislation. Assume going in that most employees are familiar only with the union's side of the argument.
  • For most people, loss of privacy and unpressured choice are the most compelling arguments against EFCA. Make sure your employees know exactly what EFCA would take away from them. Also compelling is the issue of union dues; employees who know how much they'd pay monthly can be less vulnerable to organizing.
  • At the same time, far too many employees don't have a firm grasp of what they really have when it comes to pay and benefits, two prime targets of union organizers. Doing everything possible to familiarize workers, not only with what they have, but also its value, can help union come-ons fall on deaf ears.
  • As an aside: tool kits, which typically include printed materials, videos and e-mails are good workplace communication tools. However, they can never take the place of face-to-face communications between supervisors and their direct reports. We recommend training every management employee about how best to communicate EFCA, including answering questions, and requiring them to hold meetings with all of their employees.
  • Depending on an employer's hiring status, communicating with new employees can make a big difference should a union come calling. New hires often can be the softest targets for organizers.
  • And finally, immediately create a quick-response team that's empowered to make critical decisions. Have the team prepare an emergency operations plan to enable a rapid response to a card-check drive. Train supervisors about what to look for. Give them a toll-free number that's staffed 24/7 to report card-check activity. Prepare communications materials in advance; once a card check drive is discovered, it could end while you're still writing and obtaining approvals.

Even if EFCA doesn't become law, these preparations can help every organization become more effective.

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