There has been a buzz that has ebbed and surged since 2007 about the Employee Free Choice Act. It seems like the news picks up when Congress is talking about taking action, and subsided when the economic news of the day turns south and takes out attention. I am concerned that many of us may not really know what this proposed legislation (H.R. 1409, S. 560) is about, or why anyone should care. Let me try to describe the proposed changes in layman terms.

The Employee Free Choice Act (EFCA) is an amendment to the National Labor Relations Act (NLRA), which was enacted by Congress to govern the relationship between employee and companies.

Let me digress to the NLRA for a moment, as this is the underlying set of rules that we have had since 1935. The NLRA is a depression era program put in place to combat high unemployment, low wages, and poor working conditions. The act created the National Labor Relations Board (NLRB), which has two primary functions: determining through secret ballot elections if employee want to be represented by a union in dealing with their employer, and to prevent and remedy unlawful acts, called unfair labor practices.

At a high level, employees have a right under the NLRA to seek to be represented by a labor union – this process typically starts with employees signing “cards” that indicate their desire to be represented by a particular labor union and presenting these card to the employer and the NLRB. Employers have a right to accept the signed cards as a sufficient mandate of their employee’s desire for representation, or demand a secret ballot election.  The NLRB will supervise this process and do its best to make sure that the proscribed rules are followed. At the end of the process, the NLRB will certify the outcome, and if a union is authorized to represent the employees, the company and the union will begin negation of a labor agreement.

This was a dramatic oversimplification of how the process works and the emotional stress it can cause. But it identifies two key areas where the Employee Free Choice seeks to make changes. Firstly, who decides to have a secret ballot election? Secondly, the manner in which a labor agreement is reached.

Now, let’s switch back over to EFCA. The Employee Free Choice Act would make two significant changes to the NLRA. One, employers no longer have the choice to select an election as the means for determining the intentions of employees to be represented by a union. That is to say, that card elections would be sufficient evidence to certify a union.  Two, employers have much less time to reach an agreement with a union if it is certified to represent the employee group. Specifically, a company will have 90 days to reach a labor agreement or be forced into mediation or binding arbitration if mediation fails. 

So what is the net impact of all of this? Employees can sign a “card” and get representation by a union without a secret ballot and have a labor agreement in place within 120 days of presenting sufficient cards to the employer.

That doesn’t sound so bad does it? Or does it? There are arguments on both sides. Proponents of EFCA assert that the changes are essential to protect an employee’s right to join a union. Currently a company can demand an election even if 100% of its employees have signed a “card”. Opponents of EFCA claim that card check elections will lead to coercion of employees by unions, and thus reduce their ability to make an informed choice to be represented by a union.

Who is right? It depends on your perspective of the nature of the employee-employer relationship. If you believe the relationship between employees and employers is adversarial, then pick a side and argue like the dickens for your point! There is no need for collaboration, only negotiation.

If you believe the relationship between employees and employers can and should be collaborative, then the question of “who is right” is irrelevant.

Companies that truly want to grow and remain competitive understand that it is their employees that ultimately fuel the growth engine. The only real action a company can take to drive long term growth is to ensure that it creates the appropriate conditions for its employees to deliver on the promises it makes to its customers. This is a collaborative process; a virtuous cycle of continuous improvement where companies concurrently improve profitability while becoming better employers!

The REAL question that must be asked is this: “Why are employees not choosing to affiliate with their employer?” Responsible companies know that employees have a choice between organizations with which they will affiliate. Responsible companies know that they have a role to play in influencing the affiliation choices of their employees. So what then must a responsible company do?

Do this: Commit to becoming more profitable while concurrently becoming a better employer. Commit to discovering the expectations and intents of their employees through responsible workplace research provided by third party. Commit to learning and improving from their observations. Commit to communicating the actions the company is taking for improvement in response to the evidence gained from responsible workplace research. Commit to all of these things as part of the fabric of the way business is done.

If more companies did this, would the question then be: “Why would employees want to affiliate with anyone other than their employer?”