By: Richard H. Wessels, Esq.
That terrible piece of legislation, the Employee Free Choice Act (EFCA), still lurks in both houses of Congress. Some say it is dead, but it is not!
The EFCA was reintroduced on March 10, 2009 into both the House and the Senate. The House passed this exact bill back in 2007. Faced with a certain presidential veto by President Bush, the EFCA went no further.
Nancy Pelosi, Speaker of the House and ardent supporter of the EFCA, has made it clear that the Senate must take it up first. We monitor all Internet chatter on this subject. Our educated guess is that some form of the EFCA will be passed, but it will not be as extreme as it is in its current form. As it was introduced into Congress this spring, the EFCA is a historic pro-union change in the law. In simplest terms, there would be three changes in the National Labor Relations Act.
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Unions could gain recognition without an election. All they would need would be 50% plus one out of an employee group to sign union cards.
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Bargaining would be streamlined to the point that, after a short timeframe of about four months, a government arbitrator would dictate wages and other terms of a contract.
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Penalties would be stiffened. Traditional NLRB remedies would be gone and replaced by heavy monetary fines.
All of this would tilt the balance sharply in favor of unions. Powerful forces for business, such as the U.S. Chamber of Commerce, are lobbying against the EFCA. Equally powerful union interests are going the other way. Right now our guess is that there will be compromise and that something will pass. Any change whatsoever in the law will be a major shift in favor of organized labor. This is just raw politics. No amount of rhetoric can change the fact that the NLRB secret ballot process is not the reason unions are spiraling down-hill. One needs to look only at the high water mark back in the 1950's when unions represented over a third of the private sector workforce. Now, they have shrunk to about 7%. The law was exactly the same in the 1950's as it is now! The secret ballot election process had nothing to do with this decline. The decline of organized labor was caused by any number of other factors such as the decline of manufacturing, increase in protective legislation for employees that made unions unnecessary, union corruption, far more enlightened HR policies, etc.
We at Wessels Sherman have been meeting regularly with our clients to prepare them for a change in the law whatever it will be. A big part of this is inoculating employees against signing union cards. This issue is so important because a change in the law is likely to cause employers to be blind-sided. Card signing will be done in secret. The union will be in before the company has a chance to tell their side of the story. A part of our inoculation process is the use of a persuasive video suitable to show to employees even before card signing starts.
Interested in talking about this approach? Please contact WS Founder and Shareholder Dick Wessels in our St. Charles office at (630) 377-1554, or riwessels@wesselssherman.com
