Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by D. Gregory Valenza | The Daily Journal | Jan 16, 2009

The inauguration of President-elect Barack Obama is just a few days away. Congress will assemble with solid Democratic majorities in each house. The new administration doubtless will breathe new life into bills that have languished in Congress during the past eight years.

One such bill is the so-called Employee Free Choice Act. I say “so-called” because the purpose of the bill is not to facilitate “free choice.” Rather, the bill’s self-described intent is to “establish an efficient system to enable employees to form, join, or assist labor organizations.”

Anyway, it is time to get over Orwellian bill names and get about the business of advising employers and their lawyers. Already passed by the House as H.R. 800, the bill is awaiting the Senate’s consideration under bill number S. 1400.

Given unions contributed mightily to the results of the recent national elections, it is not a stretch to anticipate the Employee Free Choice Act ‘s passage in 2009. If the act indeed becomes law, it will have a drastic effect on union organization success rates. Therefore, employers wishing to remain union free must begin preparing now.

Secret Ballot Elections

Its first substantive section (Section 2) is aptly captioned, “Streamlining Union Certification.” The bill would add to Section 9 of the National Labor Relations Act. The new provision authorizes the National Labor Relations Board, the federal agency that administers the National Labor Relations Act, to certify a union based only on “valid authorizations” signed by a “majority of the employees in a unit appropriate for collective bargaining.” The bill goes on to require the board to develop regulations establishing what constitutes a “valid authorization,” such as the language of the authorization and how to tell if the union obtained the authorization in an appropriate manner.

Under current law, if the employer does not agree to recognize a union’s majority status, either the union or the employer may file a petition for a secret ballot election conducted by the National Labor Relations Board. So, the act will obviate the need for such elections when the union presents sufficient valid authorization cards.

Do Away With Elections?

The Employee Free Choice Act’s supporters are not against elections per se. The board runs representation elections under tight control. They rarely are overturned for irregularity. Rather, the Employee Free Choice Act’s fans seek to avoid election campaigns. The board directs elections about six weeks after determining an appropriate bargaining unit. During that period, the employer and the union present information to employees about the merits or drawbacks to union organization.

The act’s proponents argue that employers unfairly influence employees against unions, and even violate the National Labor Relations Act without repercussions. Employers and management lawyers, on the other hand, will tell you that employers lawfully campaign merely by educating employees with facts, opinions and examples about unions, and that employees make up their own minds when they hear both sides of the story.

Moreover, the National Labor Relations Act and decades of board precedent govern in detail what is proper and improper campaigning. And unions are not shy about filing charges of unfair election practices to the board. In some cases, the National Labor Relations Board can impose a “bargaining order” -a union victory by fiat — when there is campaign or election misconduct.

Proponents know that without a campaign, only the union will present its arguments to the employees, during the drive to obtain the “valid authorizations.” Whether one wishes to blame misconduct or credit proper education, representation campaigns make it harder for unions to win the right to represent employees.

Employers and unions each win about half of the secret ballot elections held, year after year. If the employer is not given the chance to tell employees its side of the story, the union will be required only to gather enough signatures, over an unspecified period of time, to claim majority representation. Never mind that employees can vote their conscience in a voting booth free from the peer pressure and inducements that could affect whether a given worker signs an authorization card in plain view.

By analogy, “neutrality agreements” require employers to refrain from taking a position against or for a union during a campaign. When a neutrality agreement is in place, unions win the vast majority of elections. So, you can bet that unions will be more successful when there are no union campaigns and no secret ballot elections.

Other Provisions

Section 3 of the Employee Free Choice Act imposes new requirements on employers and unions bargaining over their first contract. Under the new bill, the parties must meet to negotiate a first contract within 10 days of a request to do so. The parties are required by statute to “make every reasonable effort” to do so. After 90 days of initial bargaining, either party may request mediation under the auspices of the Federal Mediation and Conciliation Service.

If bargaining and mediation fail after as few as 30 days of trying, then the mediation service must refer the parties to a panel of three arbitrators, who will impose a binding agreement valid for two years. Presumably, the arbitrators will know little to nothing about the employees or the business except what the union and employer tell them at a hearing.

These provisions will change existing law, which does not impose contractual obligations on unions and employers when they fail to quickly reach agreement. Proponents believe that unions that fail to negotiate a first contract may lose majority support and be decertified.

Finally, Section 4 of the bill strengthens the board’s power to obtain injunctions and monetary remedies against certain unfair labor practices.

Don’t Just Stand There, Do Something

Politicians, unions and management can continue the robust debate over whether unions are desirable business partners. Most employers likely want to retain union-free status. But even employers that do not object to unionization must prepare for the Employee Free Choice Act.

In the private sector, union membership has hovered under 10 percent for many years. Therefore, most employers have no idea how to operate under a unionized environment.

The applicable law is not intuitive, and can vex even the most seasoned labor relations manager. Once a union is certified as a bargaining representative, employers must adapt to a collective bargaining environment and to the arcane rules and decisions that constitute labor law.

Unionization will require training line management, human resources and corporate counsel concerning collective bargaining, contract administration, unfair labor practices, strikes and the like.

Employers seeking to remain union free in spite of the act need not wait for the union to knock on the door with authorization cards in hand. Once the union is certified, it is difficult to regain union-free status. So, union-free employers need to be proactive.

Contrary to popular belief, employees typically do not unionize because a union promises higher pay or benefits. Unions are successful in organizations where employees feel they lack a voice, and where they perceive unfair treatment. Management therefore must review policies and internal reasons for poor morale, feelings of insecurity or other job dissatisfaction. To obtain candid employee feedback, it is a good idea to have an outside consultant or lawyer audit line supervisors regarding morale, policies and practices. A proper complaint or “grievance” procedure, lawful employee empowerment programs and a commitment to anti-discrimination and harassment policies can go a long way toward preventing unions. Competitive wages and benefits never hurt, either.

Finally, employers should not remain silent regarding their views about unions. Educate employees regarding the employer’s union-free policy, or the reasons the company wishes to remain union free. Employers also may and should train managers about what they lawfully can and cannot say regarding unionization, and in response to questions employees may have.

As in all things labor law, employers and lawyers unfamiliar with the subject matter should obtain sound advice from experienced labor lawyers. They have been waiting a while for an increase in demand for their services. It looks like that time finally has come.