Organized labor's membership in the private sector has plummeted below 8 % - an all time low. To address this problem, unions have turned to an aggressive legislative agenda designed to tilt the scales in their favor. Among the items on their priority list are the Employee Free Choice Act (EFCA) and the Re-Employment of Skilled and Professional Employees and Construction Trade Workers Act (RESPECT Act).

At the top of labor's wish list is EFCA, a bill that would radically alter 75 years of labor law governing the representation rights of employees. Specifically, EFCA would fundamentally change three critical aspects of the National Labor Relations Act (NLRA) by: 

1. Providing for the elimination of NLRB supervised secret ballot elections in favor of "Card Check" thereby enabling unions to organize employees merely by convincing or coercing a major of the to sign authorization cards.
   
2. Changing the rules of bargaining by imposing mandatory interest arbitration on those parties who fail to reach an agreement on their own within 130 days, and subjecting employers to substantially increased penalties and remedial relief.

The RESPECT Act is an effort to narrow the scope of individuals who would be considered "supervisors" under the NLRA. If passed, it would substantially reduce the number of employees considered supervisory, thereby increasing the number of employees eligible for union representation. From a practical standpoint, the RESPECT Act would also decrease the number of employees permitted to campaign on behalf of the employer in response to a union organizing effort.

In the wake of President-elect Obama's victory, the business community has been flooded with recommendations on how best to respond to these proposed pieces of legislation. Some suggestions may appear to be severe and even cost-prohibitive. At this stage, however, it remains to be seen whether these provisions will become law as proposed or whether compromise bills will be crafted and signed into law. We recommend a balanced approach, taking into account lingering uncertainty in the legal landscape and the unique challenges presented by the current economic climate.

Regardless of whether some or all of these bills become law, one thing remains clear: employers can anticipate a surge in organizing activity in the first months of an Obama Presidency. Should the card check provisions of EFCA become law, those employers who are ill-prepared could wake up to find their employees unionized by a reinvigorated labor movement.

Consequently, all employers are best served by acting now to prepare for the onset of stealthy, but aggressive, card-signing efforts. Those who choose to wait until the legislation is actually passed may find that they are too late to adequately protect their organizations. Employers should pursue a proactive strategy designed to inoculate and educate employees long before the initial signs of union activity. Fortunately, time remains for concerned employers to prepare adequately by rolling out their plans through a structured approach, as outlined in this document.

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