February 2009Newsletter

Q & A with Michael Best: The Employee Free Choice Act

Issue 1

Michael Best’s Labor and Employment Relations Law Practice Group has developed this newsletter series addressing the most common questions raised regarding the Employee Free Choice Act. Please feel free to call or e-mail us with other questions. Future issues of this newsletter will tackle other common questions employers are asking, as well as any breaking developments in the world of EFCA.

Q: Is there a standard “EFCA tool kit” employers are using?

A: Many employers are developing “tool kits” in an effort to take their employee-relations program to the next level. The word “standard” does not really apply because “tool kits” are crafted to reflect each employer’s industry, internal resources, and unique workplace culture. That said, most “tool kits” have at least a few common features such as: (1) talking points for the senior leadership team; (2) key employee handbook policies; (3) manager/supervisor training and resource guide; (4) hiring guidelines and interview questions to minimize the exposure to salting.

Q: Will unions be able to collect authorization cards now and use them if or when EFCA passes?

A: In general, unless properly revoked, a signed authorization card is valid for a year. For this reason, some unions may be engaging in quiet card-signing campaigns now in hopes of using those cards if or when EFCA passes. We doubt that this approach will succeed. If EFCA passes, the National Labor Relations Board (“Board”) is likely to require that all union authorization cards contain very specific language developed and approved by the Board. In addition, we believe the Board will recognize that employees who signed cards based on the current law may not have been willing to do so under an EFCA framework.

Q: How vulnerable are smaller companies (bargaining units of 25 or less) to organizing at this point?

A: Some experts believe that unions are most interested in organizing large employers – the so-called “whales” – and will leave the “minnows” alone. Statistically, however, unions are more successful organizing in smaller bargaining units where a single issue can take on a life of its own and provide the impetus for what we call “wildfire” card-signing. In a 25-employee unit in a post-EFCA world, the 13 cards a union would need to be certified could be collected in the heat of the moment, in a matter of minutes or hours, without a lot of thought and without any opportunity for the employer to respond.

Q: What are the most common problems you are seeing when clients ask you to review and revise their employee handbooks?

A: People sometimes forget that an employee handbook can be Union Exhibit 1 in an organizing campaign. More often than not, the problem we see is tone as opposed to content. A handbook should have an “employee friendly” tone. Some handbooks we see have a “50 Ways to Get Fired” tone – e.g., “at-will” employment disclaimers appear in a half-dozen places and every rule is followed by the statement, “violations can result in discipline up to and including discharge.” Making sure handbook policies reflect the current state of the law is equally important. We see a fair number of handbooks that have overbroad and invalid solicitation/distribution, bulletin board, access, e-communication, confidentiality, and ethics policies.

Q: What is the best way to educate employees about the “value” of their wage and benefit package in this economy?

A: Believe it or not, the bad economy gives you a great opportunity to reinforce existing bonds or forge new bonds with employees. A recent Weber Shandwick survey shows a strong employee appetite for communications from senior executives about the impact of the economic crisis on their company. However, since many employees do not feel secure and do not want to hear you tell them how great they have it, careful thought and finesse is required in the messaging. While it makes sense to educate employees about their package, the tone and focus should be on your efforts to secure jobs and maintain that package and your desire to hear the ideas, questions, and concerns your employees have.

Q: What can we expect from the National Labor Relations Board in coming months?

A: A day after the PPMA event, President Obama designated Wilma B. Liebman (D) as chairwoman of the five-member National Labor Relations Board ("Board"). Her term expires in August 2011. Chairwoman Liebman has been a Board member for 11 years and is a former union-side labor attorney. There currently are three vacancies on the Board, giving President Obama the opportunity to create a Democratic majority on the Board at the beginning of his term. Chairwoman Liebman is expected to lead the new Board in an effort to reverse many decisions issued by the Bush Board and expand the scope and meaning of the Section 7 rights employees enjoy under the Act.

View Issue 2 of the Q & A with Michael Best newsletter

This newsletter is provided for informational purposes only and does not constitute legal advice. You should consult an attorney about your particular circumstances before you act on any of the information contained in this newsletter. © 2009 Michael Best & Friedrich LLP. All rights reserved.


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