Unionization– easier with EFCA

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Unionization– easier with EFCA

By Anna MaskerIn standard27th February, 2009

Buried in all of the financial news is a new law that could have tremendous negative impact on small business owners nationwide.  It is called the Employee Free Choice Act (EFCA), and it would allow workers to unionize very easily and relatively quickly if passed.

I recently attended a seminar by Jackson Lewis,a law firm that exclusively represents management in workplace matters, about EFCA and its impact on businesses. Below are some highlights from their presentation.

Let’s face it—many companies are struggling to reduce costs, and often “people costs” are a big source of savings. Employees across the country are dealing with reduced pay, mandatory furloughs and layoffs. To combat this uncertainty, many are looking to unionization to provide protection and job security, and EFCA allows them to do so more easily.

Encouraged watching United Auto Workers Union’s Ron Gettelfinger fighting for “fair wages” and representing the laborers during the auto bailout hearings, employees may wish they had someone to represent them in the workplace.

Business owners, on the other hand, see the damage unions have done to the auto industry. American automakers simply cannot produce a competitive product because union wages and expenses drive up costs.

Unions are not just for manufacturing companies. In fact, union leaders have declared that “Rebuilding our strength must include fast-growing, nonunion sectors,” which include retail, professional services and healthcare– all jobs that cannot move overseas.

So why is this piece of legislation a big issue?

The Employee Free Choice Act (EFCA) removes critical pieces of the current-day unionization process, and could potentially allow unions to take a swift and strong foothold in any business with multiple employees.

The current process (below) relies on an initial support gathering, filing a petition, and a 6-week period where the company can plead its case with employees to discourage unionization before the secret ballot election is held.

EFCA, on the other hand, only requires a majority of employees in a bargaining unit to sign cards saying they want to unionize before the union is certified as the workers’ representative and negotiations must begin. (“Bargaining units” vary by workplace but includes employees who have a community of interest.) Unless the business acts proactively, the business does not have an opportunity to present its case.

If a majority of cards are signed, according to the law, you only have 120 days to negotiate a first contract with the union before mandatory arbitration begins. First contracts often take much longer than 120 days to negotiate, and with mandatory arbitration, some unions may believe they will fare better at the hands of a mediator. The arbitrator can determine everything from pay rates to disciplinary procedures. In addition, EFCA imposes hefty fines if the employer is found to have wrongly dismissed an employee due to unionization efforts. < So what can you do?

As Jackson Lewis put it, “Define yourself before the union defines you.”

Here are some things that they suggest you do now before unions get a foothold in your business.

  • Start the discussion with employees on why unionization is unnecessary for your employees, your customers, your business and the community at large, and why speaking directly with employees is your preferred method of resolving issues.
  • Get your HR house in order. Make sure disciplinary policies and union solicitation/distribution policies are in place. Remember– any action you take after the unionization process begins may open you up for penalties.
  • Look at the way your work groups are organized. If a group of employees do a certain task, say maintenance work, that small group can organize into a union simply if a majority of the group signs cards. If you think you are at risk because a small group of your workers could constitute an appropriate bargaining unit, consider modifying your work assignments. This may help you expand the size of the unit, making it more difficult for unions to organize your workers.

Bills are passing through Congress with alarming speed and there is little time to waste to be prepared for this one. For further information and additional steps you can take to prevent unionization in your business, you can contact Jim McDonnell (mcdonnej@jacksonlewis.com) or James LaRocca (laroccaj@jacksonlewis.com)

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