New NLRB Rules Implement Controversial Elements of EFCA

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The Employee Free Choice Act (or EFCA) is something we hear very little about now. Just a few short years ago, however, EFCA generated a lot of noise and energy.  But the political landscape shifted, and EFCA became a faint memory.

That is, until President Obama appointed members of the National Labor Relations Board who, through administrative action and rule making, are working to impose many of the concepts in EFCA; this activity by the NLRB is often referred to as “EFCA Lite” and has led to some controversy.

Actions taken by the NLRB and DOL have attempted to make it easier for unions to organize employees.

NLRB Shortens Election Timeframe Through Rulemaking Authority

On November 30, 2011, in an unprecedented development, and by a 2-1 vote, the National Labor Relations Board approved a resolution to prepare a final rule adopting a subset of the controversial “EFCA Lite” election rule amendments the Board published for comment in June 2011.

This rule will shorten the period of time between when a union files a petition to hold an election and the actual election. David Kadela of Littler Mendelson recently published a highly informative article on this topic; this shift will dramatically impact employers.

Time from Petition to Election Reduced

Under the old rules, employers would often have over 45 days to communicate their position, values, and train their managers. And of course, legal wrangling and jockeying is part of this dance; legal motions could extend this time period for campaigning. Often, this was seen as a benefit to the employer.

Under the NLRB’s newly announced procedures, companies’ ability to make these legal motions will be dramatically reduced, and as a result, companies will have less time to communicate and campaign. While it remains to be seen how short the election period will become, commentators have estimated elections could occur as quickly as 28 days after an election petition is filed.

Every Minute Counts

Many employers take a wait and see attitude about organizing. Often employers don’t proactively educate managers about the risks, the red flags, or what is and is not permissible when it comes to talking about unions. As a result, managers are often undereducated and ill-equipped to respond when the union is at their doorstep. At the first sign of organizing, employers shift in to high-panic mode trying to educate managers and communicate with employees at the same time; the rules that apply to managers can be counterintuitive, and the consequences of inappropriate manager action can be significant.

Under the new rules, employers will no longer have the luxury of time to educate managers or employees. And that means, an employer who is serious about maintaining its current non-union relationship with its employees must get proactive.

Employers need to evaluate what they can do now to get themselves prepared.  One of the easiest and most effective tools at your disposal is eLearning (like ELT’s innovative Union Awareness solution) designed to educate managers about:

  • Best practices for creating a culture that supports direct communication between management and employees
  • Positive employee relations strategies
  • Red flags
  • Your organization’s position on unionization
  • Drivers for union organizing
  • The election process
  • What managers can and cannot say to employees about unions
  • Common unfair labor practices

By training your managers now your organization will reap significant benefits:

  • Managers can help create a culture that supports direct communication and where employees reject unionization attempts;
  • Managers will be better prepared to spot organizing activity (giving you more time to respond); and
  • Your organization (if forced to conduct a campaign) will be able to focus on the campaign rather than educating your managers on the basics

Well trained managers understand the link between their behaviors (and how they treat employees) and the risk of union organizing.

Every minute counts. Make the most of the time you have now.


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