EFCA, we hardly knew ye. 
With this issue of INK we finally officially lay the Employee Free Choice Act to rest. While the writing’s been on the wall for a while unions continued to threaten action on the bill during the lame-duck session of the 111th Congress. With the swearing in of the 112th Congress this week, I think even the strongest EFCA supporters must now admit it is officially dead. If you’ve been reading INK recently you know that EFCA hasn’t really been the issue for a while. The action has been – and will continue to be – at the agency level. For example, three days before Christmas the NLRB put a big lump of coal in nearly every private employer’s stocking. On December 22nd the NLRB filed a Notice of Proposed Rulemaking that will require every employer covered by the National Labor Relations Act to post a notice explaining some of the rights employees have under the Act. By the NLRB’s own admission they aren’t sure how many companies this covers, but they estimate at least 6 million companies will have to post the notice. When I say “some of the rights” of course I am referring to the fact that the notice almost exclusively focuses on the parts of the Act that help unions while completely ignoring other aspects of the law that unions don’t like employees to know about. The current majority members of the NLRB are putting the full weight of the federal government behind their belief that all companies should be unionized. This notice posting requirement is just one of numerous regulatory and decisional changes we anticipate over the next couple of years. Economist George Stigler won the Nobel Prize in economics in 1982. One of his core contributions to economics was the concept of “regulatory capture.” Regulatory capture is when a public agency instead advances the special interests of the group it supposed to regulate. The agencies are called “captured agencies.” If you look at the regulatory agenda of the National Labor Relations Board, Department of Labor and the National Mediation Board I think it is fair to ask whether these are captured agencies. They are led by former union officers, employees or advocates. They are very clearly doing their best to directly help unions. What can employers do to defend against the actions of these captured agencies? First, stay informed. This newsletter is dedicated to keeping our clients and friends up to date on these changes and to provide our best recommendations about how to respond to them. If you didn’t sign up for our recent urgent action call on the NLRB posting requirements I encourage you to take a look. Even more important, do everything you can to protect your direct relationship with your employees. Here at Labor Relations Institute we believe strongly that direct relationships between employees and management are far superior to indirect, third party relationships. We spend countless hours each year helping our clients earn and protect what we call the “direct relationship privilege.” No matter what the regulatory environment, if your employees prefer working directly with you they won’t join a union. These two items should be numbers one and two on your 2011 resolution list.
