Columbus partner Mike Asensio was quoted in the June edition of Employee Benefit News in the article, "EFCA Debate Roils Between Employer, Union Groups."
According to the article, as debate rages over the reintroduction of the Employee Free Choice Act (EFCA), labor and employer groups clamor for political support for or against these dramatic changes to labor law. The bill would allow workers to organize via card checks rather than the usual secret ballots and aggressively regulates collective bargaining.
Whatever the final details [of EFCA], Asensio, head of the firm's labor relations practice team, recommends maintaining positive employee relations and having a union prevention plan in place at all times. He suggests training managers so they know what to do once cards appear in the workplace and can communicate effectively and comfortably to employees the benefits of not having a union. Employers need to demonstrate the value of an open-door policy so that employees can deal directly with the employer on workplace issues. Managers should also be able to explain the dangers of signing a binding union-authorization card.
According to the article, while currently there is no provision for mandatory interest arbitration, under EFCA, if an employer and union fail to negotiate a contract after 90 days, either has the option to request mediation from the Federal Mediation and Conciliation Service. "The difficulty with the interest arbitration is that it turns on its ear the process that's been in place for settling collective bargaining issues between the employer and union for 75 years," explained Asensio. "The reality is that the bargaining won't be done in good faith by either side because there will be posturing in getting ready for arbitration. Ultimately, the issues aren't going to be decided through bargaining because you're going to submit them to an arbitrator and it will behoove the union in almost every instance to go to arbitration, otherwise they're going to be accused of leaving money on the table" Asensio said.
The greatest employer fear is that the binding arbitrator would place a company in a multiemployer plan against their will, thereby making them subject to significant liability and possibly suffocating their ability to succeed. Asensio also expects to see many more strikes if EFCA passes. In a post-EFCA world, employers will have to argue to the arbitrator that their requests are based upon a business need. With this in mind, Asensio recommended that non-union employers establish a track record now to justify the business need for issues such as subcontracting.