A survey conducted in January by the law firm Barnes & Thornburg LLP concludes that while 98% of respondents oppose the Employee Free Choice Act (EFCA), few have educated front-line supervisors and employees on the content and potential impact of the proposed legislation.

The e-mail survey, which went out to executives at "a broad cross section of U.S.-based corporations," found that only 32% of responding companies have trained front-line supervisors and managers on EFCA's potential impact, while only 10% of companies have trained employees on the proposed bill's impact. Representatives of approximately 260 companies responded to most questions on the survey.

Also noteworthy, according to Ken Yerkes, partner and chair of the labor and employment practice at Barnes & Thornburg, is that 86% of respondents said that even if EFCA doesn't see the light of day, President Obama's appointments to the National Labor Relations Board (NLRB) will result in rule changes that will make it easier for unions to organize. (NLRB has been operating with two members since January 2008, but Republicans worry that Obama will use recess appointment powers to name controversial labor lawyer Craig Becker and other nominees to the board.)

"So it was a rather striking disconnect between the clear sense that unions are going to have an increasing advantage, one way or another, either through the risk of EFCA passing or the certainty of President Obama's appointments as favoring union organizing, and yet we do not have, on the other end, behavior that would insulate [employers] from those risks at the present time," Yerkes told IndustryWeek.com.

‘Nobody Should Take Anything for Granted'

Ken Yerkes, partner and chair of the labor and employment practice at Barnes & Thornburg

EFCA proposes three major changes to the National Labor Relations Act. EFCA would create a second option for forming a union -- the now-infamous "card-check" provision -- which opponents argue would have the effect of eliminating the current secret ballot format for union organizing. In the Barnes & Thornburg survey, nearly 93% of respondents indicated that they are aware that "EFCA abolishes the secret ballot election if a majority of employees sign cards or a petition."

EFCA also would impose tougher penalties against employers that violate laws on union organizing and negotiating, and it would mandate binding interest arbitration if an employer and a union cannot reach an agreement on a first contract within 120 days of good-faith bargaining. In the survey, 82% of respondents noted they are aware that "under EFCA, an arbitrator would have the authority to impose terms and conditions of employment if the parties cannot reach an agreement."

With the vast majority of survey respondents indicating that they are aware of EFCA's potential impact, Yerkes found it surprising that so few employers had engaged in any type of awareness efforts. Part of the reason might be reflected in the survey's first question, in which just 30% of respondents said they believe EFCA will become law in some form in 2010.

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