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Employee Free Choice Act – Not a Free Choice at All

It is surprising to me that no mention of the Employee Free Choice Act of 2007 (EFCA) also known as the “card check act” was made during the presidential election campaigning.  The bill sponsored by Barack Obama was passed by Congress last year, but voted down in the Senate.  It is predicted that the House of Representatives will vote on this bill within the first 100 hours of the next session. A very troubling part of the EFCA is it would eliminate the secret ballot election during union organizing campaigns.  Under EFCA, a union could be certified through a majority of the employees in the bargaining unit signing union authorization cards.  Just as troubling is the provision that mandates mediation after bargaining for 90 days and binding arbitration if a newly authorized union and the employer cannot arrive at an agreement within 120 days. Another provision of EFCA will expand the remedial powers of the National Labor Relations Board for employer unfair labor practices during union campaigns and initial contract negotiations including triple back pay – three times more than current law allows - and up to a $20,000 fine to the company for each violation.

It is no surprise that the EFCA is the top priority for organized labor in the next legislative session. It is also no surprise that with a Democratic majority in both the House and the Senate, the probability of the bill being enacted is very high. 

The fact is, EFCA is a bad law. To begin with, there is no provision in the law to control or penalize the actions of the unions for any coercive actions during card signing campaigns or contract negotiations.  We would hope the members of the legislature are not so naïve that they believe unions would not use strong-arm tactics such as coercion, threats, lying and intimidation to obtain signatures on union cards. Unions do this now. The enactment of the EFCA will likely make this type of union behavior worse.

A Look at the Future
Let’s take a look at the top 10 events that will more than likely occur in the labor arena if the EFCA is passed.

  1. Union organizing will occur without the knowledge of the company leaving little, if any, chance to initiate the free speech provisions given to employers under the Taft Hartley Act.
  2. Union organizers will promise the sky, the moon, the stars and the entire Milky Way as an enticement to employees to sign a union authorization card.
  3. Employees who try to discourage the union organizers will be bothered at home with telephone calls and personal visits from union organizers and pressured to sign union cards.
  4. Employees who in the past were able to sign a union card to get the organizers off their back with the knowledge that there will be a secret ballot election, will no longer have the opportunity to vote.
  5. Since one of the provisions of the EFCA mandates that bargaining commence within 10 days of the union being authorized, initial bargaining will be disorganized, disjointed, discouraging and distasteful.
  6. Most new contract negotiations will go to mediation which will be a very expensive endeavor.
  7. Since most new contracts under the current laws take longer than 120 days to come to an agreement, binding arbitration of first contracts will become the norm instead of the exception.
  8. The mediation and arbitration provisions will encourage unions to draw a line in the sand, refuse to negotiate and take their chances with an arbitrator – who may have no knowledge of the employer’s business, profitability, industry or market.
  9. Labor costs will rise by 250% as it usually does in unionized businesses. This increase in costs is due to dealing with grievances, hiring additional labor experts and contract administrators, legal fees and working with the union rules – not higher wages and more expensive benefits. In fact the difference between the wages and benefits between union and non-union workforces is a non-issue because there is none.
  10. Many companies will be forced to reduce their workforces or go out of business completely. 

A Call to Action
Follow the links below for the names, mailing and e-mail addresses for all of the members of the United States Senate and members of the House of Representatives.  Write to your Senators and Congress members and tell them what a bad law the Employee Free Choice Act is.  Now is not the time to mess around with the labor laws that have worked very well for the last 60 years. This is a business issue and each and every manager in all companies should be strongly urged to write a letter to their Congress and Senate representatives to stop this bill from being passed.  These must be individually written as campaigns that have repeatedly included the same wording have a greater possibility of being ignored.  (By the way, for those who have the SPHR designation, strategic management credit is available for writing letters to members of the House and Senate.)

Members of the U.S. Senate

Members of the U.S. House if Representatives

A Contingency Pre-emptive Strike is Required.
Pardon the pun, but a pre-emptive strike is exactly what is needed in the likely event that the Employee Free Choice Act becomes Federal law. Employers must educate employees on the provisions of the law, the ramifications of signing union cards and what to do if they are asked to sign union cards. If employers are given a heads up that a union is attempting to organize its workforce, the free speech provisions of the Taft Hartley Act can be put into action.

Hopefully, a contingency plan will not be necessary. But with Barack Obama in the White House and Democratic majority in both the House and the Senate, there is a high probability that a contingency plan is required and will save your company from unionization.

Take Action Now.  Don’t put your head in the sand and don’t rely on lobbyists to take your message to the House or Representatives and the Senate. Take action now. Write to your representatives.

Thanks for reading the McKenzie Mailer.

Kind regards,

Bob McKenzie


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