Since it seems the passage of health care reform is imminent, you can be assured congress will start focusing on the Employee Free Choice Act (EFCA) (AKA Card Check Act) next. President Obama promised the unions during his campaign that he would get EFCA passed. Therefore, if you believe its passage is inevitable, what can employers do to prepare?

The basic premise of EFCA dictates that if your employees notify you that 51% of the employees have signed cards; they are deemed a union and must be recognized. There will be no secret ballot, or a time period for you to take action between when you are notified and the actual secret ballot, because there will be no secret vote. The time to take action is now before EFCA is passed.

Review policies now.

Make sure your policies are written in a way that they do not become ammunition for unions to use against you.

Review your compensation and benefit strategy now.

Frequently unions will promise better wages and benefits. As the employer, you cannot promise anything once you’ve been notified that your employees want a union. Therefore, make sure your wages and benefits are competitive, and not a source of dissatisfaction.

Train your supervisors now.

Many employees select a union because their supervisor or management in general won’t listen to them individually, so they get a union to speak on their behalf. Give your employees a vehicle to express their concerns, and an opportunity to have them addressed.

Terminate all employees that should be terminated now.

If you have malcontents or poor performing employees, get rid of them while you still can. Once you’ve been notified it will be much harder, if not impossible, to get rid of them. Often it is these employees who feel they need the protection of a union and are the major force behind an organizing effort. All too frequently employers roll along with the intention of letting certain employees go, and then suddenly it is too late – they have filed a workers comp claim, or a harassment complaint. If they need to be gone, do it now!

Let your representatives know your opinion of EFCA now.

It is not yet a law, which means there is still an opportunity to influence your elected representatives. The longer they wait to take action on this bill the closer it gets to the next election. Unions certainly influence their representatives. Employers need to do likewise.

These next two actions should be considered with caution.

Let employees know where you stand on unions.

This tactic is often used if you are already notified that there has been a card signing and you are waiting for the secret ballot. You can always present facts, and you are entitled to have your opinions about unions, however you cannot make threats or promises. Again, if EFCA is passed as proposed, you will not have the opportunity to give your point of view on the pros and cons of unions – it will already be too late and your company will be unionized. The flip side to this action is if you start talking about unions now, it will bring attention to unions and may cause some employees to think about organizing who may not have done so on their own.

Encourage your employees to become a union now.

This should only be considered as a last resort. The current language in the bill provides that if an employer and a union are unable to reach agreement within 90 days, either party may refer the dispute to the Federal Mediation and Conciliation (FMCS) for mediation. If the FMCS is unable to reach an agreement after 30 days of mediation, the dispute will be referred to arbitration, and the result shall be binding on the parties for two years.Therefore, if you really believe your workforce will try to organize when EFCA is passed, you could avoid EFCA by negotiating now and not be held to the 90-day deadline or the binding arbitration.

Of course there is one more option – you could do nothing. Just wait for the EFCA’s passage and deal with the fallout. I believe that the first four points are things employers should do anyway, whether you are faced with unionization or not. They will ultimately make you a better employer.

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