Posted by: Professionals In Human Resources Association (PIHRA) | October 15, 2009

Employee Free Choice Act (EFCA), Not “if”, but “When”

Employee Free Choice Act (EFCA), Not “If”, but “When”: So, Human Resources Department, “Are you Ready?” 

By Jack Bermudez, Sr. Labor Consultant
Former Corporate Leader in Human Resources and now Sr. Labor Consultant

Human Resources Leaders need to be aware of their Corporations Employee Relations atmosphere, is it vulnerable to Union Organizing.  Even though EFCA legislation is still pending, Unions are mounting their organizing efforts.  Human Resources are you READY!

As a Labor Consultant, I have worked for small to large corporations, doing management training to countering Union organizing.  What myself and any Labor Consultant will tell you is that the two common denominators in why employees seek out a Union is the following:

  1. Lack of Communication from Management:  they don’t listen, and they don’t talk to us about what is happening with the company.
  2. Management treatment of employees, lack of, “Dignity and Respect!”:  “Management talks down to us”

“If you don’t like it, there is the door” , “there are plenty of people outside those doors that will take your job if you don’t like it here”.

A third issue that deserves honorable mention, but not necessarily top 2 is……Human Resources Department! Yes, unfortunately as a former Human Resources Leader, this issue comes up more than it should, and needless to say that saddens me. Why? Because HR department should be the conscience of the company and the employee advocate in making sure management, as well as employees should be following company policies, rules of Conduct, Safety, therefore creating a POSITIVE Employee Relations.   

Not always the case.  The comments made by employees during a Union Organizing drive, or when they begin to sign Union cards is that, “Human Resources doesn’t listen to us” or “the only time we see HR is when someone is getting fired!”  Whether it is true or not, as we all know, Perception is Reality.  So if employees feel that they cannot go to their manager or Human Resources department then they go to….. You guessed it, THE UNION ORGANIZER, who will promise them a better work life and protection under a union contract.

Employee Free Choice Act (EFCA) and the elimination of Secret Ballot Election
For the purpose of limited space, we will focus on only one of the major concerns in this Legislation, and that is the Elimination of the Secret Ballot Election.

(Please review the full legislation on the internet)

Read to what George McGovern, former congressman, senator and one-time Democratic nominee for the presidency, states regarding EFCA.  Notice how he states the current methods used by Unions on how they get employees to sign union authorization cards.

 George McGovern concern as stated in the Wall Street Journal in August, 2008

“The key provision of EFCA is a change in the mechanism by which unions are formed and recognized. Instead of a private election with a secret ballot overseen by an impartial federal board, union organizers would simply need to gather signatures from more than 50% of the employees in a workplace or bargaining unit, a system known as “Card-Check.” There are many documented cases where workers have been pressured, harassed, tricked and intimidated into signing cards that have led to mandatory payment of dues.”

Need we say any more about this pending legislation and the impact it would have in today’s economic conditions.  Research indicates that the cost of running a unionized operation is 25% to 35% greater than for a non-unionized one, and this figure does not reflect any negotiated changes in unionized employee wages or benefits

Current State of the National Labor Relations Act (NLRA)

  • Card Signing

In order for your corporation to receive a petition from a union to represent your employees, there has to be a minimum of 30% of Union Authorization Cards signed, but Unions will push for 60-75% of signature cards for the reason that there is a good possibility that they will lose some support during a campaign. Once they have the minimum of cards signed by the employees the union can petition the National Labor Relations Board for an election.  The union must win the election by getting 50%+1 of the votes casted by the designated unit of employees.  Unions have won 66.8% of the representation elections in 2008, up from 60.4% the year before.  Source: BNA, Daily Labor Report 5-5-09…..

WOW!  High percentage of Union victories! This winning percentage by the Unions without EFCA, Now what happens once this bill is passed or any form of this legislation that will favor the Labor movement?

What Unions are doing in anticipation of the new law?
The Unions are very anxious about this new law and or a modification of it.  They eagerly look for increasing their membership; National statistics indicate that for private industry the current Union membership is approximately 7.8%. Currently the Teamsters have on their web-site a recruitment program for 1000 new organizers to assist them in organizing employees who work for non union companies, their goal is to have these 1000 organizers by year end 2009.

Do you have a diverse workforce?  Be assured Unions will be going after the Hispanic Workforce, who can be unfamiliar of the US Labor Laws.  Based on George McGovern’s comments, limited English speaking workforces are very vulnerable.  Many, if not all have Spanish Speaking Organizers to recruit for union membership.  Along with the Spanish Speaking workforce, union organizers will target other workforces that have high diverse workforces.  Unions are ready, are you!

 In the Trenches with Labor Consultants/Communication Specialists:
How valuable can they be to your organization in remaining Union Free?Labor Consultants are used for two reasons by corporations:

  1. Assist the HR department during a Union organizing campaign, by meeting with employees to educate them about the National Labor Relations Act so that when it is time to vote, they can make an informed decision, yes or no for a union.

Employees often will express their issues to these consultants, (poor management treatment, lack of Communication, and HR) as mentioned at the outset of this article and this is done without soliciting grievances by the Consultant.  The information can help Employers, who have the right to defend their position, to communicate the current benefits the company provides to its employees.  Consultants coach management and first line supervisors of their role during a Union campaign and advise them on the law. The importance of a Consultant can be the difference between being Union Free or your employees being represented by a Union.

  1. Also, consultants are used for union prevention, by conducting Employee Opinion Surveys/Audits when there is no NLRB petition for election, to assess a company’s vulnerability to union organizing.  Consultants work closely with the Labor Attorney, Executives and Human Resources in order to achieve the goals of the Corporation in remaining Union Free. 

The purpose of educating employees about their rights under the National Labor Relations Act so that they can make an informed decision and understand that with a union contract there are no Guarantees for better wages or benefits. Many employees are unaware of the implication of signing a union authorization card (legal document) and are led to believe that a union contract will automatically provide the better wages and benefits.  Therefore educate and then educate.

So the million dollar question…… Are you Vulnerable and Are you ready?Based upon the issues mentioned above, what should HR Leaders do if the wish to continue to remain Union Free?

First, listen to the Labor Attorneys on Union Avoidance!
If you wish to remain Union Free, listen to the following prominent labor attorney’s. The best prognostication that Labor Attorney Kathryn McGuigan shared with the HR Leaders of the Pacific West HR Conference, that was held at the Palm Springs Convention Center last month.

“It’s going to be very pro-labor for the next four years,” McGuigan, of the Los Angeles law firm Epstein Becker & Green, said of appointments under the Obama administration and legislation currently in committee.

The best way to prevent employee interest in unionization is pretty simple, McGuigan said: “Communicating with employees is the best thing to do.”

Audits, surveys and other feedback systems can detect dissatisfaction in certain areas or vulnerabilities, including members of the management team.

Also, Labor Attorney Marta Fernandez of Jeffer Mangels Butler & Marmaro LLP in her article dated 11/28/08 advises corporations to do the following:

What Can You Do?
One of her recommendations is “Speak up now”! “Why educate your employees now, before a Union organizing drive?  Many employers might think that educating the workforce on the issue will only cause employees to “think about a union” or “rock the boat” when the union is not on anyone’s mind.  However, once a union organizing drive is underway, the rules change and employers become much more limited in what they can say or do to educate their workforce or make changes to improve workforce loyalty.  The best time to speak on the subject is before a union organizing drive commences!”

Fernandez, like McGuigan, recommends Vulnerability Studies.  This will allow a Corporation to identify areas that are vulnerable to union organizing. Communication is the key element with your employees.  Educate employees about your benefits, vacation and sick leave policies, and flexibility within the organization and finally as you read from the two prominent Labor Attorney’s, educate your employees about their rights under the National Labor Relations Act, which will help them understand 1.They have right of not joining a Union, if they choose to do so, and 2. Under current law, there is no guarantee that they will get better salaries & benefits under a union contract.

What Corporate Human Resources Leaders should be doing now!

  • Educate your Executive Team, educate your management team, help them understand the Law, and communicate your corporate policy about being “Union Free”
  • Conduct Employee Vulnerability Studies/Opinion Surveys
  • Evaluate your supervisory positions
  • Address Employee Concerns!!!!
  • Review employee policies and procedures, for example; No Solicitation Policy
  • Human Resources Leaders: make your selves visible on the floor, visit employee sites or departments; create a positive employee relations atmosphere.  Emphasize to your management team, that leadership is quality management of employees and treating them with dignity and respect at all times.  Do Right!

Education at Employee Level:

  • There is no such thing as over communication! Communicate the progress of the company and its company goals, even if there is loss of business, let your employees know the good and the bad, employee appreciate being in on things.  Consultants often report that employees complain that they feel that management does not inform them enough, even if it is bad news “Let us know”.
  • Listen to your employees:  Do you have a diverse workforce? Spanish Speaking for example, make sure and TRANSLATE all company communications in whatever languages is dominant in the workforce if it is Spanish translate.  Consultants have shared that in areas in the U.S. that have a strong Spanish Speaking workforce, feel slighted and offended if communication is not done in their language, which provides a grievance a union organizer would jump on.  So communicate in whatever language that befits your workforce.

HR Leaders make sure and do your Assessments, Employee Opinion Surveys/Vulnerability Study, and if you do all that, then your organization is READY!

Jack Bermudez, is a human resources/labor consultant.  He provides onsite coaching and training of management during Union campaigns and assist corporations on developing Union Avoidance programs.  Jack is bi-lingual English/Spanish and can be reached at



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