The 'Revised' Employee Free Choice Act

Even in its revised form, EFCA will still provide unions with an unprecedented “boost” in organizing American workers at a very rapid rate as a quickie election process, coupled with huge fines for unfair labor practices committed during organizing drives, will have nearly the same effect as card checks; making it much easier for unions to organize. One can expect the number of unionized American workers to double in five years.

To counter the adverse effects of the EFCA, the following tools may be utilized to maintain positive and productive relationships with employees and educate them about the employer's perspective.

Adopt a 'Proactive' Employee Relations Philosophy

The days of being “reactive” are over. Ongoing communications to employees and performance enhancing/team-building programs are essential. If an employee is performing poorly, the company should not wait until the termination meeting to tell that employee about a record of poor performance. Performance goals must be stated clearly and reinforced as often as necessary. Although it is important for management to state its goals, it is also important for employees, who are eager to learn about those goals and expectations. They have invested their time and ambitions in the workplace and in the culture of the company for which they work. Remember that the three most important words for successful employee relations are: “Communication, Communication, Communication.”

Tell Employees They Can Ask a Union Organizer for a Copy of the Union's Annual Financial Report and Its Bylaws

Employees should be told how union dues are spent and for what purposes. They should request the appropriate forms (LM-2 Forms) that will reveal how much money the union officers and organizers are paid; if those salaries are high, workers may be discouraged from wanting to contribute a portion of their own hard-earned salaries to union representatives. If a union does not provide the requested documents, employees should question the union's motives.

Present Employees with a List of Essential Questions to Ask

For example, an employee should ask the union organizer the following questions:

• Will the union guarantee in writing that it will get employees a raise of X dollars and better benefits or be liable to employees if it doesn't?
• How much are union dues?
• What portion of union dues goes to paying union salaries?
• How much are special union assessments and how often will they be imposed?
• Is it true that employees can be put on trial and fined if they violate the union constitution and/or by-laws?
• Will the union guarantee in writing that employees will not be permanently replaced during an economic strike?
• Will the union pay wages to employees if they are called on strike?

Help Employees Understand the Value of Their Own Company's Compensation and Benefits Plans and Philosophy

Companies that fail to sell the value of their wage-and-benefit plans will invite feelings of employee dissatisfaction. Quite often employees do not understand their own pay package because it is so complex and complicated. A simple explanation may be all it takes to enlighten an employee of the value of a company's benefits plan. Employee understanding of the plan is often followed by acceptance. The company should contrast its compensation and benefit plan positively with union “promises,” which are ' in fact ' just promises.

Develop and Refine an Employee Selection Process

For example, always do background checks, contact previous employers about each applicant, tailor the interview/selection process to the position being hired, etc. It is during this process that the interviewer can determine an employee's attitude toward management.

Gauge Employee Attitudes Through Surveys and Feedback Sessions

This is so that unions cannot take advantage of employee discontent. Employee surveys should become a “pattern and practice” at the company and should be done on an annual basis. Employee surveys will let management know how employees feel about a host of important factors, such as pay, benefits, supervisors, general work environment issues, fair treatment (or lack thereof), appreciation levels, and even whether the bathrooms are clean.

Create a Strategy for Reinforcing the Value of Maintaining a Union-free Workplace

It is important to explain to employees and supervisors the value of working in an environment free of interference from third parties. This means that employers have to honor the commitment to treat employees with the dignity and respect they deserve. For example, a company newsletter can be used to honor certain individual accomplishments or those of employee teams.

Craft a Position Statement On Unionization

This should indicate the company's position about the subject. If the company does not state its position about unions, employees may feel that the company does not care if it becomes unionized. The company is permitted to publicize a position statement on unions in an employee handbook and/or during employee orientations. Of course, this statement cannot be intimidating or threatening or it may be deemed unlawful.

Create a Policy Modification (Employee Handbook) in Response to Employee
Survey Input

The policy modification must include informal and formal dispute resolution procedures, and “positive” discipline. Employees want to know that their input on the survey actually means something and that the company is responsive to their opinions. In addition, a formal grievance procedure should be utilized, which includes a two-to-three-step process.

Implement a Program to Build Employee Recognition and Identification with Management

This can be as simple as company jackets, t-shirts, hats, jackets or even a company softball or bowling team. Camaraderie and high morale are extremely important in any workplace and will serve to obviate employee desires to have their expectations met by a union.

Create a Training Program for All Front-Line Supervisors

In the minds of employees, front-line supervisors “are” the company. If those supervisors are respected and their roles are appreciated by employees, then the company will be similarly respected and appreciated.

Conclusion

If Corporate America adopts that steps outlined above, it will not only significantly reduce the likelihood of unionization under the proposed revisions to the Employee Free Choice Act, but it will also increase worker productivity, morale and ultimately profits! A non-adversarial, cooperative relationship between management and workers is the key to an ever-rising bottom line.

Michael Pepperman, Esq., is a partner in the Labor Relations and Employment Law Department of the Philadelphia-based regional law firm of Obermayer Rebmann Maxwell & Hippel. He exclusively represents management in all facets of labor relations and is the author of numerous articles. He can be reached at [email protected].

Over the past several months, behind-the-scenes “legislative wrangling” has led to several proposed modifications to the poorly titled Employee Free Choice Act (“EFCA”), a bill currently pending in both the House and Senate. These modifications apparently will result in the elimination from EFCA of the “undemocratic” provisions concerning card check (as the sole way to determine if employees want a union) and the restoration of secret ballot elections as the primary means of determining if employees desire union representation. In doing so, however, legislators will likely modify the bill by significantly shortening the period in which elections are held after a union requests an election (from the traditional 42 days to approximately 10 days). The rationale behind such a move is that while card checks obviate traditional democratic principles, shortened periods for union elections will permit unions to operate stealthily and curtail management's options for presenting its own case of why workers should not join unions. It is obvious that the significantly shortened election period is intended to increase the current success rate of union organizing efforts.

The revised version of EFCA will still provide for huge fines (up to $20,000 per violation) for any employer that violates the National Labor Relations Act (NLRA) during an organizing drive or during negotiations for a first contract. EFCA also will continue to mandate binding arbitration for those items that management and the union cannot agree upon in negotiating that first contract. In effect, government arbitrators will impose a labor relations contract on companies that cannot reach agreement with new unions.

Currently, the NLRB attempts to schedule elections within 42 days after a petition is filed and in those elections, unions have a win rate of approximately 70%. If the election period is shortened to a 10-day period, the union win rate will likely soar to 90% and higher.

Even in its revised form, EFCA will still provide unions with an unprecedented “boost” in organizing American workers at a very rapid rate as a quickie election process, coupled with huge fines for unfair labor practices committed during organizing drives, will have nearly the same effect as card checks; making it much easier for unions to organize. One can expect the number of unionized American workers to double in five years.

To counter the adverse effects of the EFCA, the following tools may be utilized to maintain positive and productive relationships with employees and educate them about the employer's perspective.

Adopt a 'Proactive' Employee Relations Philosophy

The days of being “reactive” are over. Ongoing communications to employees and performance enhancing/team-building programs are essential. If an employee is performing poorly, the company should not wait until the termination meeting to tell that employee about a record of poor performance. Performance goals must be stated clearly and reinforced as often as necessary. Although it is important for management to state its goals, it is also important for employees, who are eager to learn about those goals and expectations. They have invested their time and ambitions in the workplace and in the culture of the company for which they work. Remember that the three most important words for successful employee relations are: “Communication, Communication, Communication.”

Tell Employees They Can Ask a Union Organizer for a Copy of the Union's Annual Financial Report and Its Bylaws

Employees should be told how union dues are spent and for what purposes. They should request the appropriate forms (LM-2 Forms) that will reveal how much money the union officers and organizers are paid; if those salaries are high, workers may be discouraged from wanting to contribute a portion of their own hard-earned salaries to union representatives. If a union does not provide the requested documents, employees should question the union's motives.

Present Employees with a List of Essential Questions to Ask

For example, an employee should ask the union organizer the following questions:

• Will the union guarantee in writing that it will get employees a raise of X dollars and better benefits or be liable to employees if it doesn't?
• How much are union dues?
• What portion of union dues goes to paying union salaries?
• How much are special union assessments and how often will they be imposed?
• Is it true that employees can be put on trial and fined if they violate the union constitution and/or by-laws?
• Will the union guarantee in writing that employees will not be permanently replaced during an economic strike?
• Will the union pay wages to employees if they are called on strike?

Help Employees Understand the Value of Their Own Company's Compensation and Benefits Plans and Philosophy

Companies that fail to sell the value of their wage-and-benefit plans will invite feelings of employee dissatisfaction. Quite often employees do not understand their own pay package because it is so complex and complicated. A simple explanation may be all it takes to enlighten an employee of the value of a company's benefits plan. Employee understanding of the plan is often followed by acceptance. The company should contrast its compensation and benefit plan positively with union “promises,” which are ' in fact ' just promises.

Develop and Refine an Employee Selection Process

For example, always do background checks, contact previous employers about each applicant, tailor the interview/selection process to the position being hired, etc. It is during this process that the interviewer can determine an employee's attitude toward management.

Gauge Employee Attitudes Through Surveys and Feedback Sessions

This is so that unions cannot take advantage of employee discontent. Employee surveys should become a “pattern and practice” at the company and should be done on an annual basis. Employee surveys will let management know how employees feel about a host of important factors, such as pay, benefits, supervisors, general work environment issues, fair treatment (or lack thereof), appreciation levels, and even whether the bathrooms are clean.

Create a Strategy for Reinforcing the Value of Maintaining a Union-free Workplace

It is important to explain to employees and supervisors the value of working in an environment free of interference from third parties. This means that employers have to honor the commitment to treat employees with the dignity and respect they deserve. For example, a company newsletter can be used to honor certain individual accomplishments or those of employee teams.

Craft a Position Statement On Unionization

This should indicate the company's position about the subject. If the company does not state its position about unions, employees may feel that the company does not care if it becomes unionized. The company is permitted to publicize a position statement on unions in an employee handbook and/or during employee orientations. Of course, this statement cannot be intimidating or threatening or it may be deemed unlawful.

Create a Policy Modification (Employee Handbook) in Response to Employee
Survey Input

The policy modification must include informal and formal dispute resolution procedures, and “positive” discipline. Employees want to know that their input on the survey actually means something and that the company is responsive to their opinions. In addition, a formal grievance procedure should be utilized, which includes a two-to-three-step process.

Implement a Program to Build Employee Recognition and Identification with Management

This can be as simple as company jackets, t-shirts, hats, jackets or even a company softball or bowling team. Camaraderie and high morale are extremely important in any workplace and will serve to obviate employee desires to have their expectations met by a union.

Create a Training Program for All Front-Line Supervisors

In the minds of employees, front-line supervisors “are” the company. If those supervisors are respected and their roles are appreciated by employees, then the company will be similarly respected and appreciated.

Conclusion

If Corporate America adopts that steps outlined above, it will not only significantly reduce the likelihood of unionization under the proposed revisions to the Employee Free Choice Act, but it will also increase worker productivity, morale and ultimately profits! A non-adversarial, cooperative relationship between management and workers is the key to an ever-rising bottom line.

Michael Pepperman, Esq., is a partner in the Labor Relations and Employment Law Department of the Philadelphia-based regional law firm of Obermayer Rebmann Maxwell & Hippel. He exclusively represents management in all facets of labor relations and is the author of numerous articles. He can be reached at [email protected].