This just may be the year that Congress accomplishes what it has been trying to do since 2003: pass the Employee Free Choice Act.

With political forces all but astrologically aligned in the House, Senate and White House, proponents are optimistically awaiting the first major labor-oriented amendment to the National Labor Relations Act (NLRA) in many years.

Introduced earlier this year as HR 1409 and S 560, the Employee Free Choice Act (EFCA) is designed to facilitate a union’s ability to organize employees and attain the status of employee representative. The proposed law seeks to accomplish this through three major changes to the NLRA.

First, EFCA would eliminate the need for the National Labor Relations Board, the administrative body that is responsible for certifying labor union representatives and policing violations of the National Labor Relations Act (known as unfair labor practices), to conduct a representation election where a union seeks to organize a previously unrepresented group of employees. If the board finds that a majority of those employees have signed authorization cards designating the union as their representative, the board will be required by EFCA to certify the union as the employees’ representative without conducting a secret ballot election. This change will deprive employees of the historical right to exercise their choice, either for or against representation, in the privacy of a voting booth. It will also all but eliminate the employer’s opportunity to advise its employees of its views regarding unionism through a responsive campaign.

Second, EFCA establishes a third party dispute resolution procedure for parties who are negotiating a first contract.  If an employer and a union are unable to reach a contract within 90 days after commencing bargaining, either party may request mediation services from the Federal Mediation and Conciliation Service (FMCS). If mediation does not produce a collective bargaining agreement within the next 30 days, the disputed bargaining topics would then be referred to binding arbitration for resolution by an arbitration board established by the FMCS. The arbitration board would decide the terms of the new contract and the contract would be in effect for two years. Management representatives oppose this aspect of EFCA since it takes away management’s ultimate right to agree to contract terms and places the business decision in the hands of individuals who have no stakeholding in the employer’s enterprise.

Third, EFCA provides new penalties for violations of the National Labor Relations Act that occur while an organizing drive or first contract negotiations are under way. The penalties, as proposed in the pending bills, include awards of three times back pay for discharged employees and civil fines of up to $20,000 per violation for willful or repeated unfair labor practices. The penalties obviously up the ante and risk for employers who will have any unfair labor practice charges that are filed against them heard by a politically appointed National Labor Relations Board.

There are some steps that presently unrepresented businesses covered by the National Labor Relations Act should take now to position themselves in the event of passage of EFCA before the end of the 111th Congress in 2010. The following are a few suggested action items:

(1) Confirm the essential business mission of your company and its goal to operate using sound business practices, employee relations, and a direct working relationship with its employees. Communicate these goals to all employees of the company.

(2) Evaluate the company’s current employment practices through a vulnerability assessment or other evaluative tool in order to identify areas of management weakness and staff dissatisfaction.

(3) Review employee handbooks, work rules and personnel policies to ensure that they not only further the orderly operation of the business, but also create a positive working environment for employees. Make sure the company’s policies include a lawful no solicitation/no distribution rule and a procedure for employees to bring their complaints and concerns to management’s attention.

(4) Conduct a wage and benefit survey to ensure that your company’s compensation package is competitive with comparable businesses in the area and the labor market.

(5) Communicate matters of company-wide importance regularly to employees through meetings, bulletins and other vehicles so that employees are made to feel an integral part of the enterprise. Provide them with a forum, such as through group meetings or surveys, to express their views and suggestions. Listen to them and follow up appropriately.

(6) Train your managers and supervisors on the fundamentals of effective supervision. Make sure that they know that direction of the workforce is a critical part of their job responsibilities. Hold them accountable for not only productivity, but also positive employee relations. Train them how to identify possible union organizing efforts and what they legally can and cannot do in response to such efforts.

(7) Train your managers and supervisors regarding your work rules and personnel policies and instruct them on how to consistently interpret and enforce those rules and policies through everyday application.

(8) Properly train and orient new employees regarding their job duties, the company’s mission and its employee relations philosophy.

(9) Ensure that your company is currently complying with all applicable employment-related laws, including but not limited to, the Family and Medical Leave Act, employment discrimination laws, safety laws, and wage and hour laws.

(10) If your company does not already have an established relationship with employment and labor counsel, identify and engage counsel as soon as possible so that you have a ready resource in the event of employment issues. Acquaint counsel with your philosophy and enterprise before problems arise so that you may team to address problems quickly and effectively when they arise.

Proper planning for EFCA can actually result in positive changes to your company’s work environment, a satisfied work force, and ultimately, a more successful business.

		Karen Bush Schneider is a shareholder with White, Schneider, Young & Chiodini, PC, a law firm specializing in employment and benefits law.