9/9/08

Pitfalls of 'no-vote' unionism revealed

More EFCA stories: hereMore card-check stories: here

False 'free choice' scheme excludes decertification by card-check

In an attempt to reverse the precipitous decline in union membership over the last 30 years, recent initiatives by organized labor reflect a determined assault on workplace democracy designed to organize new groups of employees regardless of whether those employees truly need or want union representation. One of organized labor's primary tactics is to secure passage of the deceptively misnamed Employee Free Choice Act (EFCA). This highly controversial piece of legislation would radically alter the method by which employees select union representation and transform the process by which employers and unions initiate collective bargaining agreements under the National Labor Relations Act (NLRA).

EFCA undoubtedly will be a major issue in the Presidential election. Senator Barack Obama supports the legislation. The bill passed the House of Representatives in 2007 and if Senator Obama is elected, many presume this will be one of the first items on his legislative agenda.

In anticipation of the heightened EFCA debate, Ford & Harrison's D. Gerald Coker answered the most pressing questions the legislation presents.

What is the Employee Free Choice Act?

The Employee Free Choice Act (EFCA) is proposed legislation which aims to amend the National Labor Relations Act (NLRA) to establish a new system by which employees unionize and companies and unions negotiate first contracts.

If passed, how would EFCA affect the current law?

Drafted as proposed amendments to the NLRA, EFCA would effect three fundamental modifications to federal labor law:

1. EFCA establishes a mandatory card-check recognition process in lieu of the current secret ballot election system administered by the National Labor Relations Board.

2. EFCA sets forth special procedural requirements for reaching an initial collective bargaining agreement, including the imposition of a "neutral arbitrator" (after four months of unsuccessful bargaining) to determine the terms of the first collective bargaining agreement.

3. EFCA revises enforcement procedures against employers with respect to alleged unfair labor practices that occur during union organizing drives and alters the remedies available to alleged discriminatees because of such violations.

What is a card-check, and how does it work?

A card-check does away with the secret ballot system. Employees will no longer cast ballots on union representation in the privacy of a voting booth; instead, an employer would be required to recognize a union as the employees' exclusive bargaining representative once the union presents signed authorization cards from a simply majority of the employees in the work group targeted by the union.

Are card-checks a fair alternative to the secret ballot?

Card-check recognition would give unions a license to use high-pressure tactics against employees behind closed doors in order to obtain signed union authorization cards. The proposed legislation does not contain any provision allowing employees to "ratify" the card-check. EFCA does not specify whether employees can decertify a union through a card-check majority.

Are card-checks foolproof?

Experience has shown that signed authorization cards do not necessarily reflect how the majority of employees really feel about union representation. Currently, an employee who signs a card out of ignorance or under duress is free to vote "no union" in a secret ballot election conducted by the National Labor Relations Board several weeks later. Moreover, EFCA fails to provide any guidance with regard to the processing of authorization cards. How long will authorization cards be valid? Can an employee rescind or revoke his card and, if so, how? Will there be a process for detecting forged cards?

There's a lot of talk about how EFCA affects employees, but how does it affect the employer?

EFCA affects employers in a number of ways:

-- EFCA excludes employers from the representation process. EFCA will create a largely unregulated atmosphere where employee "choice" is sealed off from any input but that of the union's. This violates the spirit and intent of the free speech rights expressly set forth in our labor laws.

-- Employers must consider a year-round campaign. EFCA allows a union to gather signatures without the employer's knowledge. An employer may not find out until the union asks the NLRB for certification, and at that point, it is too late for the employer to do anything about it. If EFCA were to pass, an employer would have to consider communicating with employees throughout the year about union organizing, which can be a major distraction and misinterpreted as an anti-union campaign.

-- EFCA allows a government-paid arbitrator to set wages and benefits in a first contract. A union can call for mandatory arbitration if the parties have not reached a first labor agreement after only 120 days; this has the potential to impose significant contract provisions that are not in the employer's best interest.

-- Higher union density could mean higher costs. As EFCA reinvigorates Big Labor's organizing efforts, the renewed energy and EFCA's card-check process would result in more organizing "victories" and thus increased union membership. This increase in union shops combined with mandatory arbitration of first contracts could force employers to increase their labor costs, adversely affecting the economy and employment levels on a national scale.

How does EFCA change the bargaining table during negotiations for a first contract?

The arbitration provisions of involving a "neutral arbitrator" would completely undermine the employer's power and leverage at the bargaining table. A union would have no incentive to reduce its bargaining demands prior to the arbitration procedure. Arbitration could substantially and arbitrarily increase the costs of a first union contract and likely lead to decreased competition in the marketplace and the higher cost of goods and services. An employer may be compelled to accept certain contract provisions contrary to the employer's best interests such as participation in a multi-employer defined benefit pension plan (many of which are underfunded), wage increases without regard to merit, restrictive work rules, seniority-driven promotion and layoff processes, cumbersome discipline and discharge procedures, and minimum staffing requirements just to name a few.

What types of employer practices will be punished by the proposed regulations?

EFCA would require the National Labor Relations Board to give priority to conducting the preliminary investigation of certain charges filed either when employees are seeking union representation or during the period between an employer's recognition of a union and the point where the parties reach agreement on their first contract. These "priority charges" include those alleging that an employer discharged an employee to discourage union membership or that the employer threatened to discharge or otherwise discriminate against an employee in order to interfere with, restrain, or coerce employees in the exercise of their right to self-organization as protected by Section 7 of NLRA.

What can employers do to voice their opposition of EFCA?

Since EFCA is not a law yet, employers, either on their own or through various trade associations, can let candidates and elected officials know how they feel about this piece of legislation.

Companies will also want to consider being proactive with managers and employees. Steps would include publishing a lawful union-free philosophy which communicates to employees that a union-free working environment works best, providing education and training to their managers and employees so they understand authorization cards and signature petitions, and assessing the status of employee relations now with the intention of addressing legitimate workplace problems before any union organizing begins.

- D. Gerald Coker devotes his practice to working with companies on a broad range of labor and employment matters, with an emphasis on union organizing drives, NLRB representation cases, union corporate campaigns and strikes, and the investigations and trials of NLRB unfair labor practice cases.

(pr-inside.com)

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