The Employee Free Choice Act Roundup

Hopefully you all know by now that the Employee Free Choice Act has been introduced to both Houses of Congress.  If passed, this bill will dramatically alter the employment landscape by eliminating the rights of employees to a confidential vote on whether or not they want to be represented by a union and by mandating binding arbitration for first collective bargaining agreements, a move that will disproportionately and negatively impact small businesses, a crucial engine of American economic growth.

If you aren't already well aware of this legislation and its far-reaching implications, please get up to speed now and inform your representatives of your position.  To help you do just that, this post is dedicated to presenting you with a round of terrific links.

To read the bill in its entirety, the EFCA Report has links to its full text.

Can't bear the idea of reading legislation?  Two legal blogs provide helpful summaries: The Nuts & Bolts of EFCA at the Pennsylvania Labor & Employment Blog and EFCA 2009 Introduced in House & Senate at the Washington Labor & Employment Wire.

Workforce has a great article which summarizes not only the details of the law but also its implications for HR professionals.

The real impact that this law would have on jobs is addressed in this Chamber of Commerce analysis and in this article on the Thinking Right blog.

More information on the lesser known arbitration provisions of EFCA is provided at HR Observations.

A terrific personal take on EFCA is provided by KnowHR.

The HR Capitalist addresses some of the spin coming out of the pro-EFCA camp. More EFCA myth-busting here courtesy of the Chamber of Commerce.

And finally, over at Fistful of Talent, the editor applies some pressure to SHRM - and to us - on the PR front, and tells us its time to stand up and take action!  So, do it!

It's no secret that union membership and influence has been on the decline for some time.  If eliminating the chance to vote by secret ballot and opening the doors to coercion (i.e. truly reducing or even eliminating "employee free choice") is the only way unions believe they can stem that decline, that speaks volumes to me.  It tells me that this is purely about a grab for power and political influence, and not at all about positively impacting the lives of workers. 

Comments

[Paul Weatherhead]

Ann,

At least SHRM has a statement floating around somewhere stating their opposition to EFCA. I can't seem to generate much dialogue about EFCA in our total rewards association bulletin board. Like you, I have tried to post some fair and balanced resources about the legislation for members to check out. I think there may be a variety of reasons for this lack of response, but I suspect that some of the reasons include that there may be a number of people who support the EFCA, and that today's younger professionals may not have a sense of what unions are all about. Maybe I have it all wrong, but I do appreciate seeing you trying to educate people on EFCA.

Paul

[Ann Bares]

Paul:

I appreciate your comments. This legislative session with its very aggressive (and from my point of view, anti-business) pursuit of labor legislation has been a real eye opener for me in terms of the two professional associations, their sense of their respective missions and their willingness to take a clear stand. Before now, I never really considered joining SHRM, but I am considering it now for this very reason - that it fills a gap for me that is not addressed by my other membership.

I also appreciate your efforts to bring fair and balanced discussion to the total rewards bulletin board - and I find the lack of response more than a little troubling.

So, we do what we can. I figured the least I could do here is to point out the very good and helpful discussion that is happening currently in a number of places.

[Paul Weatherhead]

There are two particularly troublesome miscommunications coming from advocates of the EFCA.

(1) The sponsors of the EFCA have said that the law would not deny workers a secret ballot - it just gives workers the choice between having a secret ballot election and accepting union recognition based on a majority of signatures on authorization cards. But the law (including the version on the AFL-CIO web site) specifically says that if a majority of signatures are obtained, the National Labor Relations Board is prohibited from conducting a secret ballot election.

(2) Advocates are spreading the false statement that the law protects the confidentiality of a worker's name on the authorization card. Another falsehood! Nowhere does the proposed law or existing law protect the confidentiality from the union of people signing authorization cards. Here's how it works. The union collects the cards during an organizing drive, and thus has complete access to the names of signers. The NLRB is not responsible for collecting authorization cards. The NLRB only gets involved when the union turns the cards over to them.

Now maybe these two provisions will change in the final version that gets passed by Congress. But considering the untransparent nature of current law-making, I wouldn't bet on it. Keep your eyes open on these two features; and watch EFCA advocates struggle with explaining the truth that the proposed law violates the secret ballot election and denies confidentiality of a worker's desires.
Believe it or not, the most fair and balanced web site I have found for the EFCA is Wikipedia! Just google "Employee Fair Choice Act wiki" and you're there.

[Dan McCarthy]

Ann –
Thanks. I’m now up to speed. This is must reading.

[Ann Bares]

Paul:

Thanks for the additional information and points - I have seen this miscommunication myself, so it is important that we counter it with the facts.

Dan:

Glad you found it helpful!

[Paul Weatherhead]

Check out this story in the Sunday Washington Post about a compromise proposal to the Employee Free Choice Act: http://www.washingtonpost.com/wp-dyn/content/article/2009/03/21/AR2009032101449.html?hpid=topnews

If I have captured the compromise proposal accurately ...

-- Secret ballot election is retained. No denial of secret ballot election if majority of union authorization cards obtained.
-- No federal mediation and binding arbitration for a first contract.
-- Financial penalties and triple back pay remains.
-- To address union complaints about companies dragging out the NLRB election so they can defeat an organizing atempt, deadlines established.

[E James Brennan]

Risking redundancy for those who are W@W members, I posted this earlier today over there:

Read about (the compromise option) yesterday. It appears to be a very smart and clever proposal to properly restrain foot-dragging and retaliating managements from their worst knuckle-dragging excesses while not handing the union the easy slam-dunk opportunity the EFCA offers.

By accepting and responding to the union's most credible complaint, about the obvious abuses of some obstreperous unenlightened employers, they crafted a set of constraints that would eliminate the legitimate problems without betraying the employee rights to a secret ballot. At least, that's what they seemed to have done.

Any oppressive employer will generally lose an NLRB representation election, since the union win rate is 58%, I believe, right now. Or is it the other way around? Organizing is expensive, so unions don't attempt it willy-nilly but try to cherry-pick the most vulnerable workforces. OTOH, any decent employer with a responsible HR staff should be able to beat off an organizing drive in most circumstances under the status quo.

The growth of responsive HR functionality has had a lot to do with the decline of unions in the private sector, I suspect. Also, the loss of brute labor jobs and the offshoring (frequently because of unionization) of manufacturing positions, combined with the growth in knowledge jobs, has reduced the number of people doing the kind of work that can be restricted, reserved and tightly-packaged for optimal union control. Most workers today have no problem bearding the boss or speaking up to management. And their jobs can't be broken down as easily as collective assembly-line tasks that are controlled by the speed of the line rather than by the KSAs of the workers.

But with the shaky economy, that may change. Likewise, the only employment sector growing in America is the public sector (which AFSCME owns) and health care, which already has established unions for doctors, nurses and technicians. Expect more rather than less pressure, from the increasingly-marginalized and desperate union sector whose chosen favorites now fill the public offices.

[Wally Bock]

Congratulations! This post was selected as one of the five best independent business blog posts of the week in my Three Star Leadership Midweek Review of the Business Blogs.

http://blog.threestarleadership.com/2009/03/25/32509-midweek-look-at-the-independent-business-blogs.aspx

Wally Bock

[Ann Bares]

Paul and Jim:

Clearly this is a developing story - thanks for adding these important updates.

Wally:

Cool! Thanks for the Midweek recognition. Readers, be sure to take a look at Wally's full line-up!

[Bill Fosdick]

As someone living in Canada who has always lived with the very model proposed by the EFCA, I am reminded of a hockey adage: play better than your opponent AND the ref. Don't let your performance as an HR professional become so marginal that 51% of your employees are prepared to sign union cards.

I am not advocating support of EFCA because like most of your correspondents I am not a fan of the union philosophy nor of the bureaucracy a collective agreement creates for the employer.

Sharpen your game. Maintain regular contact with employees and know who your in-house advocates are - on both sides of the union fence. For every member of the brotherhood there is someone just as keen to not join a union and they will be the ones to shine the light on any arm twisting by union organizers.

The new act isn't in effect yet and with active lobbying it may never be. If it does then sharpen your skills because its going to take more finesse and less force as an employer to stay on top of the game.

[Paul Weatherhead]

Thanks Bill for the perspective. Not sure many in US know what life will be like with unions. Curious ... Ii US, overall union membership is somewhere around 12%. What is it in Canada with the EFCA-type legislation?

[Paul Weatherhead]

Earlier in this string of posts I mentioned that Wikipedia has perhaps the most fair and balanced encyclodedia entry on EFCA. The editors must be having a devil of a time providing that fair and balanced approach. If you click on the "discussion" tab at the top of the entry you'll see a long string of posters trying to get the editors to slant the entry one way or the other. For those of you who want to see both sides of the issues being debated, this is a must see.

[Ann Bares]

Bill:

Great perspective and advice from a northerly neighbor - thanks for sharing it here.

Paul:

The Wikipedia thing is an interesting phenomenon - thanks for pointing us to that debate string.

[Michael]

Whether unionization is positive for business, the workforce, or the economy is a conversation best left to someone in a field other than mine. As an I/O Psychologist my interest lies in organizational success through the well-being of employees.

If no other good comes from EFCA, at least it is forcing companies to have an important conversation. In searching for ways to combat unionization, employers are realizing they need engaged employees – who feel communicated to, safe, valued, and a strong commitment to the company. I’ve been hearing a lot of chatter from the legal community about the need for union vulnerability audits (www.questaroig.com/union_vulnerability.html) to ensure a satisfied workplace where unions are viewed unnecessary. Whether or not the EFCA passes I think employees (and organization) will benefit from the discussion.

[Ann Bares]

Michael:

I think your point is a very valid one - and if the outcome is for businesses to pay more attention to workplace fairness, then that is a true benefit. Same thing for the Paycheck Fairness Act, which I have been outspoken against - I do think (and I see this happening already) that if it causes more employers to be more proactive in battling wage discrimination, that is a good outcome as well.

Great thoughts - thanks for sharing them here.

[Paul Weatherhead]

For the longest time, the Jackson-Lewis law firm had their EFCA resource page prominently linked on their home page. Now it is no longer there. Maybe that's as good a sign as can be that the issue is overwith for this year.