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Latest News - March 2010

March 25, 2010
EFCA Survey: Employers Need To Step Up Awareness Efforts
Author: Josh Cable
Source: Industry Week

A survey conducted in January by the law firm Barnes & Thornburg LLP concludes that while 98% of respondents oppose the Employee Free Choice Act (EFCA), few have educated front-line supervisors and employees on the content and potential impact of the proposed legislation.

The e-mail survey, which went out to executives at "a broad cross section of U.S.-based corporations," found that only 32% of responding companies have trained front-line supervisors and managers on EFCA's potential impact, while only 10% of companies have trained employees on the proposed bill's impact. Representatives of approximately 260 companies responded to most questions on the survey.


Also noteworthy, according to Ken Yerkes, partner and chair of the labor and employment practice at Barnes & Thornburg, is that 86% of respondents said that even if EFCA doesn't see the light of day, President Obama's appointments to the National Labor Relations Board (NLRB) will result in rule changes that will make it easier for unions to organize. (NLRB has been operating with two members since January 2008, but Republicans worry that Obama will use recess appointment powers to name controversial labor lawyer Craig Becker and other nominees to the board.)


"So it was a rather striking disconnect between the clear sense that unions are going to have an increasing advantage, one way or another, either through the risk of EFCA passing or the certainty of President Obama's appointments as favoring union organizing, and yet we do not have, on the other end, behavior that would insulate [employers] from those risks at the present time," Yerkes told IndustryWeek.com.


‘Nobody Should Take Anything for Granted'


EFCA proposes three major changes to the National Labor Relations Act. EFCA would create a second option for forming a union -- the now-infamous "card-check" provision -- which opponents argue would have the effect of eliminating the current secret ballot format for union organizing. In the Barnes & Thornburg survey, nearly 93% of respondents indicated that they are aware that "EFCA abolishes the secret ballot election if a majority of employees sign cards or a petition."


EFCA also would impose tougher penalties against employers that violate laws on union organizing and negotiating, and it would mandate binding interest arbitration if an employer and a union cannot reach an agreement on a first contract within 120 days of good-faith bargaining. In the survey, 82% of respondents noted they are aware that "under EFCA, an arbitrator would have the authority to impose terms and conditions of employment if the parties cannot reach an agreement."


With the vast majority of survey respondents indicating that they are aware of EFCA's potential impact, Yerkes found it surprising that so few employers had engaged in any type of awareness efforts. Part of the reason might be reflected in the survey's first question, in which just 30% of respondents said they believe EFCA will become law in some form in 2010.


Yerkes noted that the health care bill is among several priorities that have "overshadowed EFCA in Washington."

"So I'm not surprised that some people have lost track of EFCA. It's understandable in some respects," Yerkes said. "But it's dangerous, because it will be back."
Asserting that "nobody should take anything for granted with respect to EFCA," Yerkes offered several suggestions to help companies prepare for any legislation or rulemaking that would make it easier for unions to organize:


• Contact your elected officials. "If you were ever inclined to be politically active, even as a manufacturer, and have interface with your congress [members] and Senators, this is the time," Yerkes said, adding that Barnes & Thornburg provides templates for e-mail letters to elected officials. "That really is a very effective way to stay in front of them on the issue."


• Educate at the community level. "I've been involved in a number of community programs where one or two manufacturers have gotten together and created a program to educate all of their manufacturing peers who might not otherwise be aware of the dangers of EFCA," Yerkes said. "...I think the manufacturing community and business community in general needs to be speaking with one voice and making sure that not only are they heard in their communities, but all of those employers know how to address the threat, because if one employer gets organized, it's easier then to go organize the next employer."


• Train front-line supervisors and employees. Manufacturers need to do a better job of training front-line supervisors and managers on the implications of EFCA "because the historical information and all of our experience teaches us that if you have strong and thoughtful supervisors and managers, the ability of a union to organize goes down dramatically," Yerkes said. Companies need to provide supervisors and managers "with information that they can either respond to questions, respond to misinformation on the floor or simply look for opportunities to raise the issue with employees when a favorable topic arises during the course of a day."


Yerkes also said that manufacturers should be "more willing to consider training employees," noting that his clients that have made presentations to their employees about EFCA have received an "overwhelmingly favorable" response. "These meetings are not run by lawyers or outsiders," Yerkes explained. "These meetings are run by managers -- people in touch with employees on a day-to-day basis -- and they model the very relationship that an employer is telling an employee that it wants to have and why a union is unnecessary -- that is the ability to sit down with them one on one and talk through issues of mutual concern."

 


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