EFCA Update

Speculation continues to spiral in just about every direction about the likelihood that “EFCA” will come to pass, either as legislation or as regulatory changes via the National Labor Relations Board. On the legislative side, Senator McCaskill (D – MO) summed up the legislative school of thought: “I don’t think that card-check is going to come up,” referencing the current session of Congress. However, as we have mentioned before, various elements of the original Employee Free Choice Act could find their way piecemeal into other seemingly unrelated bills, as Congress has been wont to do. On the regulatory side, some of the warnings of NLRB “enactment” of various EFCA provisions are already manifesting, including the increasing of penalties for “violations” of labor laws as seen in the example of this teacher awarded triple lost-wage damages. A recent survey by the law group Barnes & Thornburg indicates that although the majority of senior executives are educated on the EFCA (and related issues), most of their front-line supervisors, managers and employees have received no training at all on the potential impact of labor law changes. This is despite the fact that over 86% of these executives believe that the current administration will make it easier for unions to organize their companies! We have tried to make the point repeatedly that the onset of organizing activity is the wrong time to begin incorporating training about union issues to your supervisors and/or employees. Every person on the management team all the way down to front-line supervisors (yes – they are part of the management team!) should be trainedreceive what we call Tripwire training to spot the employee behavioral signs of union organizing, long before a petition can be filed. Our position on employee education is that union inoculation should begin during new-hire orientation, but for those who are a bit squeamish of this approach, at the very least, the benefits of a direct relationship with the company should be built into the new-hire and employee engagement process. Another recent article by Proskauer Rose, provides a good reminder that company executives should not forget that NLRB regulation applies to non-union companies and employees. With the landscape likely to continue to change significantly, now would be a prudent time to review issues such as: •  A published company statement on unions. •  A company no-solicitation rule •  Company policy on the employee’s use of the email system •  Company dress code issues (particularly buttons and accessories) •  Rules regarding the disclosure of confidential information (and its definition) •  Company policy regarding the right to an Employee Representative at an investigatory review. Be looking for an article by us soon addressing these crucial issues!