EFCA Webinar Q&A: Part 1

As I indicated last Thursday, many of our Employee Free Choice Act (EFCA) webinar attendees had questions for our presenters. Chris and Jerry have taken some time to address each of them and I will post them here.

I will post these responses in several batches to make them more accessible. Also, they will presented in the order in which they were received.

Here then are the first batch of questions:

Q1. Have the reasons that employees may choose to organize changed in the last 10 years?  If so, what are some of the “new” reasons?

Chris: I don’t believe so. In my experience, employees look to a union when they feel they do not have a voice, when they do not trust management, when they feel supervisors/management apply rules and policies unfairly and generally when they do not feel they are treated properly at work. Poor front line supervision and low wages and benefits can also lead to organizing. All of the above have been issues in the past and will continue to be issues in the future.

Q3. AFL-CIO?  What is it?

Chris: “AFL-CIO” stands for the American Federation of Labor-Congress of Industrial Organizations. The AFL-CIO is a group of 56 labor unions. According to the AFL-CIO’s website, the unions that make up the AFL-CIO have 11 million members.

Q4. Are there any expected big union mergers such as when the United Auto Workers (UAW) merged with Paper, Allied Chemical, and Engineers (PACE)?

Chris: Many unions have already gone through mergers. From 1995-2007, there were 31 union mergers. Although I have not heard any specifics regarding rumored mergers in the near future, I suspect there will be more as unions continue to search for ways to become relevant again. Just last week, three large nurses’ unions joined to together to create a nurses’ union with 150,000 members. That merger involved the California Nurses Association/National Nurses Organizing Committee, the Massachusetts Nurses Association and the United American Nurses.

Q5. Will the employer still be allowed to carve in or out employees as part of the bargaining unit to see if they truly have the majority via card check?

Chris: EFCA does not throw out the “appropriate unit” standard. Thus, employers will continue to have an opportunity to present facts and arguments related to which employees should be in and out of the unit the union seeks to organize. Once the appropriate unit is determined or agreed to, then you would be able to determine if the union had a majority of cards.

Q6. Do all employees in the affected unit have to sign a card, then the simple majority is calculated? Or do they only need a simple majority to sign in agreement?

Chris: Only a majority in an appropriate unit must sign. The challenge in many cases is determining which employees belong in the unit. Once the unit is defined, then you would examine whether the union had signed cards from a majority in the unit.

Q7. Is mandatory interest abritration only for 1st time contracts?

Chris: Yes.

Q8. How can it be verified that the correct employees (those to be represented in the b.unit) signed the cards?

Chris: Right now, EFCA contains no provision for testing the authenticity of or verifying signatures on cards. Moreover, under the current system, the National Labor Relations Board does vigorously monitor card signing, does not engage in meaningful verification of signatures, and generally does not allow an employer to litigate card issues unless there is some pretty strong proof of fraud, forgery or coercion. Also, in most cases, an employer has no right to see the cards in order to verify the signatures

Q9. Any thought to adding provision to place employer on equal footing?   Allow employer to have a “card check” essentially stating employee does not want union or is satisfied without one…employee could change mind later.

Chris: EFCA is clearly slanted towards organized labor. As part of the legislative process, I suspect employer groups will lobby for a more balanced law if they cannot completely derail EFCA. EFCA clearly does not allow employees to “decertify” or get rid of, a union by card check and I am not optimistic that such a process will be added to EFCA.

You raise another interesting question: what if an employee changes her mind after signing? In my experience, it’s difficult, if not impossible, for an employee to get her card back or to revoke it. Under the current system, that’s not a fatal issue, because the employer still has a chance to vote anyway she wants in the NLRB election. No similar opportunity exists under EFCA as it’s written today.

Finally, the February 26 issue of the Daily Labor Report included an article regarding the introduction of the Secret Ballot Protection Act in the House and Senate to ensure employees in union organizing campaigns the right to a secret ballot election.

Q10. How would you go about communicating to your employee’s without sounding like your trying to avoid Union

Chris:  It’s not necessarily a bad thing to communicate that you don’t want a union or you prefer to remain union free, but I understand your concern. Your communications should emphasize respect, dignity, fairness and open communications and should also emphasize that you value the one-on-one relationship you currently have with each one of your employees. You can use and build on those themes in a way that doesn’t put the union issue front and center.