March 2009Newsletter

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

Issue 2

IT’S BACK! The Employee Free Choice Act of 2009 (“EFCA”) was re-introduced in both the House (H.R. 1409) and Senate (S. 560) on March 10, 2009, kicking-off what it is sure to be one of the biggest food-fights in Congress this year. Stay-tuned – we will keep you posted. In the meantime, feel free to call or e-mail us with any questions you have about EFCA or the steps you can take now to address the potential impact of EFCA in your workplace.

Q: What is the current time table for the EFCA debate in Congress?

A: Most insiders believe the Senate will take up the bill before the House and shortly after the Easter recess.

Q: What are the odds EFCA will pass in its current form?

A: Many current signs indicate that EFCA will pass, but in a watered-down version that gives Congressional Democrats and the Obama administration some political cover and allows organized labor to claim a hollow, face-saving victory. Some past supporters of EFCA, including Senate Democrats, have hedged on their current position and Sen. Tom Harkin (D. – IA) has already said there is room to make changes as the bill moves through the normal committee process with amendments and debate.

Q: Where can I get some assistance writing a letter to elected officials expressing my opposition to EFCA?

A: You may contact national trade associations such as the U.S. Chamber of Commerce ( and the National Right to Work Foundation (, or local trade associations like Wisconsin Manufacturers & Commerce (, or go to for sample letters. You should also consider a more personal approach than using form letters that appear on-line. A letter that talks about your business, your industry and your specific concerns is often more meaningful and has a greater impact.

Q: Are particular industries or employers more likely than others to be targeted for union organizing activity under EFCA?

A: Many union leaders believe that one of the quickest and easiest ways to add dues paying members is to focus on employers who already have a union in their organization -- e.g., a union representing production employees at one location may seek to represent office employees at the same location or production employees at other company locations. Unions also are likely to focus on industries and geographic areas where union density tends to be higher (e.g., transportation, utilities, communications, construction, the northeast, and midwest), growth industries (e.g., green jobs, healthcare), industries that employ lower paid workers and minorities, industries where the business and/or work is not easily outsourced or moved, and industries targeted for growth under the economic stimulus package.

Q: Can we educate our employees on how to respond if union organizers visit or call their homes?

A: While you can't tell employees what they must say, you can: (1) tell them what they "have the legal right" to say; (2) arm them with tough questions to ask union organizers; and (3) let them know why you "hope that they will exercise their legal right to say 'no' to unions and union cards."

Q: What "tricks" have union organizers been using to get employees to sign authorization cards?

A: Unions have become increasingly sophisticated and deceptive in their tactics. Some recent examples include organizers "blitzing" a town in the late evening, claiming to "represent" the company and telling employees that cards need to be signed to "get benefits", "get additional information", or "so my boss will approve my expense reports for this evening."

Q: How important is it to ensure that we have the right managers and supervisors in place?

A: It's critical. How your front-line managers and supervisors treat employees today will determine how employees treat you if a union comes to organize tomorrow. Train your team and then hold them accountable for maintaining positive employee relations. You don't want to find yourself trying to repair poor supervisory practices or relations in the middle of a union campaign.

Q: How should we classify "lead people," "foremen" and others who play a quasi-supervisory role? Should we seek to include or exclude them from a bargaining unit?

A: There is no one-size-fits-all answer. You will need to make a strategic decision about where these employees have the greatest value - e.g., as part of the management team that communicates at your direction and on your behalf with potential card-signers/voters or in the unit where they can talk "employee-to-employee", and add to the number of cards/voters a union must get in order to gain recognition.

Q: How important is an "open door" policy during a union organizing campaign?

A: It can make or break you. A truly "open door" relationship facilitates the best possible two-way communication before, during and after a union campaign. If employees believe that your "open door" policy is, in reality, simply words on a page, you are in deep trouble.

View Issue 1 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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