Stealth labor campaigns coming to RTW states

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Get ready to meet the 'no-choice' union organizers

One of the Obama administration's first legislative priorities will be the passage of the so-called Employee Free Choice Act (EFCA). Once EFCA becomes law, unionization will no longer be a concern primarily for employers in the industrial Midwest. Instead, unionization will be thrust upon right-to-work states such as Texas. EFCA is not just bad policy. It will end this state's competitive advantage as a low-tax, union-free environment that encourages businesses to locate here and provide jobs for Texans.

Under current law, unions must win a secret-ballot election, in which employees cast their choice for or against union representation in a voting booth without anyone looking over their shoulder. These elections are designed to ensure a truly free choice and eliminate coercive pressure from either side.

EFCA will eliminate employees' right to secret ballot elections in favor of a "card check" system, whereby a union will be installed as the workers' representative if a mere majority of the employees simply sign cards indicating that they favor the union. The card check system will be conducted by the union itself, free from supervision. This will allow unions to more easily influence employees through peer pressure and other forms of coercion. Intimidated employees may sign cards, even though they do not actually desire union representation.

Millions of employees will be disenfranchised overnight. Union organizers will "cherry pick" the employees they think likeliest to sign, and many employees who might have voiced persuasive opposition to unionization will never be contacted and will never even know they are about to become union members until the process is over.

Labor's stealth campaigns will also delay management's notice of the union activity. Current law allows employers time to communicate their views about unionization and the benefits of remaining union-free, but card check drives will be over before employers know they exist.

The result will be increasingly successful union campaigns. In the first half of 2008, under the current secret ballot system, unions won almost 67 percent of private-sector campaigns. In the relatively few instances where businesses have already agreed to a card-check process, the union win rate is nearly 100 percent.

Currently, once a union is certified as the employees' representative, the employer must meet with the union and negotiate in good faith as to the terms of the labor contract. Neither side is required to make concessions that are against its best interests, and there is no set timeframe to reach an agreement.

Under EFCA, if management and a newly certified union cannot agree upon a contract within 90 days, mandatory and binding arbitration will be required. An arbitrator, who is likely to know nothing about the employer's business, will impose the terms of the "contract." The arbitrator's decision will be binding for two years.

The 90-day timetable is entirely unrealistic. The process of negotiating a first contract is a complex and daunting task. Arbitration will provide a "quick fix." Moreover, because of the two-year binding requirement, if the employer does not like the arbitrator's terms, or worse, cannot make them economically viable, it will have little if any recourse.

This system will be unworkable. Management will have no bargaining power. Unions will have little incentive to accept management's first proposal and can run out the clock, waiting for mandatory arbitration. Management may simply accede to unreasonable union demands, just to avoid the costly arbitration process.

EFCA will dramatically increase penalties for violating employees' rights to organize a union. Employers will be fined up to $20,000 for each "willful" or "repeated" violation of employees' rights in a union campaign or in bargaining for an initial contract.

Faced with the prospect of heavy fines, management may be less willing to risk mounting opposition. The result will be a chilling effect over management efforts to stay union free.

Service Employees International Union President Andy Stern claims EFCA could quickly add up to 20 million new union members. While this may be good news for unions and the politicians they influence through campaign donations obtained from union-membership dues, the outlook for the rest of us is much more grim.

Unionization results in lower productivity, lower job growth and lower wage growth. Unionization causes business relocation to more business-friendly environments. States such as Texas have benefited from remaining a right-to-work state. Coupled with the state's favorable tax laws, Texas remains an attractive place for businesses to locate.

EFCA will change that, as unions infiltrate all types of businesses, including hotels, restaurants, auto dealerships and hospitals. Texas will become a less favorable place for businesses to locate, and without domestic union-free safe havens, business relocation and outsourcing to foreign countries will increase.

Gagnon is an attorney in the Houston office of Fisher & Phillips LLP, a law firm that represents employers nationwide in all phases of labor and employment law.


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