The Employee Free Choice (?) Act

HR pro Kris Dunn raises a bright red flag with his informative article on a little-known but potentially chilling piece of legislation cleverly called The Employee Free Choice Act. Kris' intro:

"This piece of legislation would cripple the competitiveness of American business, limit the rights of employees and eliminate the need for independent-thinking HR pros, all in one easy-to-sign law."

I work closely with HR VP's on a daily basis and have never heard this mentioned.

Read it and ponder the implications regarding freedom for the individuals and the businesses involved.

Note: Before you shrug this off as "Managerial Steve" dumping on the legitimacy of unions, I have been a member of three different unions as well as the president and chief negotiator for one.

Comments

[Jo]

What might concern me is the word "exclusive". It is usually easier for the employer if there is one union. But I would like to think the employee has a choice.

I think anti-union sentiment is tied up here with the practical details. I've worked in a jurisdiction where every workplace has a works' council and you learn to work with them. Your biggest fear is that you will look too friendly.

I have also worked in a jurisdiction where the management were virulently anti-union. I thought that was a bit of a joke. I thought of the union as retired guide dog who you keep around out of respect for past contributions. You humor it by letting you guide you down the stairs and give it a snack before you feed the working dog.

If this does go through, this is an opportunity for someone to take HRManagers to jurisdictions where people get on with workers - try Norway. Working holidays for HRManagers. I'll come in with you!

But I would also be following up the legislation if I were you!

[Steve Roesler]

Jo,

I think that perhaps this is not a universal, one-size-fits-all issue.

With each country having its own underlying set of assumptions, beliefs, and structure around the meaning of economic opportunity, the legislation would be viewed quite differently according to those factors.

We'll see where this goes.

[Yancey Thomas of you can learn basic employee rights]

Here are some interesting numbers from the EEOC Charge Statistics Fy 1997 through FY 2007:

Total charges in 1997- 80,680
Total charges in 2007- 82,792

As always race based charges lead the way at 36.2% in 1997 and 37.0% in 2007. In fact all of the enforcement statistical areas have increased in charges since 1997. These other areas include sex or gender, national origin, age, disability, religion, etc. This also includes one of my favorites, retaliation-all statutes. As someone who has been a manager and an employee its understandable that The Employee Free Choice Act would strike fear in the hearts of companies and their HR departments.

The article by Kris Dunn states in his primer that as HR pros, “You’re responsible for being an advocate for employees and for being a business agent”. In my 30 plus years of career employment and as an experienced employment law mediator, I have rarely encountered an HR that was an advocate for employees. From my experience and many, many others the opposite is and has been the norm.

HR’s exist to do what’s in the best interest of the company(management or owner(s)) not the employees. Mr. Dunn also states that as HR pros, “You’re responsible for creating and maintaining a workplace free of intimidation and harassment.” That’s another interesting assessment as I been the recipient of and mediated cases where the harassment and intimidation were blatant with HR blessing.

Mr. Dunn goes on, “Under the act, you lose the opportunity to tell your story…” But the question always has to be, is the story that’s being told an accurate one? Is it truly designed to be in the best interest of both parties? Mr. Dunn makes an assumption that employees are going to blame management for the issues arising of the act they didn’t want or expect.

Finally he states, “You’re going to be less than satisfied with your HR career in a “union shop”. I believe the EEOC charge statistics given earlier show that American business has no one to blame but itself for the climate favorable to a Employee Free Choice Act. Mr. Dunn states further, “Get in the know about how the Employee Free Choice Act would restrict the rights of your employees.”

What I see is that it would also restrict the ability for ongoing collusion between HR and management from continuing to violate the basic employee rights of its workforce. In my view one of the biggest weapons American business has used against employees is the employees own ignorance of their basic employee rights. I’ve been to numerous “employment” seminars over the years but not one sponsored by the company taught or trained employees in areas such as how to recognize and prove sex, race, disability, discrimination in the workplace. I never experienced a company sponsored class or seminar on how a company can create a hostile work environment or a being aware of what retaliation looks like and how to prove same.

American business has always had an “us vs them” mentality in dealing with employees. If not their would never have been a need for unions. I believe unions can be just as detrimental to the workplace as companies who routinely violate their employee rights.

Companies will always want to have and advantage in the workplace and maintain an uneven level of control. For me the jury is still out on the Employee Free Choice Act. But I have learned from experience that anything that frightens management is usually a good thing for the workforce. The bottomline as I see it on this legislation is the effective elimination of American businesses long hallowed “At Will doctrine”.

[Steve Roesler]

Yancey,

This is obviously a topic of interest and passion. After looking at your web page it's also apparent that your own personal employment dispute--and subsequent victory--led you to become a certified mediator. Yancey, I applaud such a constructive path to help bring "just" outcomes to others using the legitimate channels available.

I'm not an HR person but work with them regularly, as well as management. My own experience has been that attitudes toward employee rights are a reflection of the character of the leaders of each company. So the issues that emerge are really the result of the attitude of individual managers toward employees and how those managers view the relationship and inherent worth of people.

Perhaps I've been fortunate. Over the past 25 or so years, my client companies have (almost) all erred on the side of grace and graciousness in employee relations. Our discussion here has prompted me to wonder why that has been the case. Since my work is mostly developmental, I realize that the organizations who engage me are developmental to the point of being willing to pay for help in that area. Therefore, the outlook of my client base places me in situations that are much more positive than contentious when it comes to employee/management relations.

I don't know if you've stopped by Kris Dunn's site and commented directly there. It might be interesting to see what would emerge from a conversation with an experienced HR pro.

Thanks for taking the time to offer up your experiences and thoughts. I guess we'll have to wait and see what ultimately happens with the legislation.

[Mark Harrison]

There may be no right "enshrined in law" to consult with employees and explain why unions aren't always the best answer...

... but any company that really believes that would have to be pretty dumb to not notice the union(s) trying to get people to sign, and fail to put the other case.

[Dennis Key]

Great Article!

If there was one piece of legislation that is right around the corner that could put your employer out of business and the economy on its knees it’s the Employee Free Choice Act (EFCA).

If you are an employer or work in Human Resources and you are not familiar with the act just wait until after the elections before you become familiar. The EFCA is on Obama’s 100 day implantation plan and organized labor will force this issue to the number the one priority if Democrats are elected to the White House and carry a majority in the House and Senate.

Imagine if your will.. around July 2009 the technical aspects of the EFCA are now worked out so it can be enforced. Several months after that, federal mediators will be hired and put in place to handle those cases where organized labor and the employer were not able to negotiate a contract within the required time limit. (Do you really want to put the fate of your entire company in the hands of a federal mediator?) The Federal Mediator (who has no real information about what this will do to your company) makes a decision that instantly raises your wages to what is considered “Union Wage” and awards your employees “Union a benefits package”. There is no appeal process possible to delay what’s about to happen to your company. (Sound far fetched? Just talk to your company attorney for how this would probably affect your company)

If you are the benefits person for your company, you are now out of a job. The union that your company became signatory to, now administers the benefits programs. Your 401k program is now exchanged for a (typically underfunded) union pension program. A program that in the past, has been subject to union corruption. A pension fund where many of the investments are made not on the basis of return on investment, but made on whims of the union leadership.

You company now needs to fill a new position. A labor relations and grievance person or in larger companies a whole department to handle the rising tide of grievance’s that will soon be filed.

Managers and supervisors need to be trained on all aspects of the union contract that the company is now signatory. Old management styles that have served the company well and stressed the personal freedom to reward outstanding or innovative employees must now be modified. Unions level the playing field for all. The slackers and the outstanding. Gone are the days that employees actually care about the company. Now they care about union that provides them the job and the contract. The contract states what can be done and cannot be done for the employee.

I could continue on about the EFCA but I think you get the picture. Times are about to change. The country as a whole will become less productive (Wages go up without a corresponding raise in productivity) Inflation rises. The dollar falls on the open market. Gasoline and all things not produced in the US become even more expensive. Am I painting a bleak enough picture to get your attention on why you will soon become aware of this act one way or the other?

[Steve Roesler]

Mark,

There is actually a designated period of time where company management can make their case to employees.

There are plenty of instances where a union will simply attempt to organize for the sake of inserting a union in a company. There may be no precipitating employee discontent.

In the case of a groundswell of employee support, one has to wonder how the management would allow the grounds for discontent to reach such a point that employees felt powerless to change anything. In such instances, maybe it's simply a case of lousy management and, at minimum, a low level of trustworthiness.

[Steve Roesler]

Dennis,

The underlying issue to me is, indeed, the reduction/elimination of one more freedom and the undermining of those willing to step up and create businesses based on capitalism and individual responsibility.

Perhaps the fact that it is an election year will cause someone, somewhere, to bring this legislation into the light.

Thanks for the in-depth response.

[Nancy Lewis]

Who sponsored this bill in the House? Why did it fail in the Senate? Who's pushing Obama to favor it?

[Steve Roesler]

Nancy:

Reps. George Miller (D-CA), Robert Andrews (D-NJ), and Peter King (R-NY) sponsored the legislation.

Fifty-one senators voted to end debate and pass the act. But the 48 senators who oppose the bill voted against “cloture,” preventing a vote on the bill. Under Senate rules, 60 senators would have had to agree to end debate before a vote on the legislation could take place.

I could not say with any authority who in the Obama organization, if anyone in particular, is pushing for his support. The record reflects that Obama voted to end debate and pass the act.

[Dennis Key]

Who is pushing for support? That is an easy one. Organized Labor. They are pumping 100’s of millions of dollars at Democratic candidates this election cycle to get this passed. What does this mean to organized labor? Union membership in the private sector is at a all time low. The Employee Free Choice Act is a act of desperation to keep unionism alive in America in the private sector.

[Steve Roesler]

Dennis,

That sounds logical.

What I am wondering is: Given the ramifications of the bill, why isn't there a concentrated and vocal effort from the other side?

[Dennis Key]

There is some opposing information out there right now.

Center for union facts (www.unionfacts.com) has articles. Great fact sheet at http://www.unionfacts.com/downloads/report.cardCheck.pdf

There are also plenty of blogs carrying information. But you are right for such far ranging legislation there is not a lot of information that is continuously in the news. (Maybe because most news sources are unionized or left leaning)

[Steve Roesler]

Appreciate the inclusion of the URL's for those who want to track this, Dennis.

[Jordan Trunner]

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