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Employment Law Blog

Friday, November 14, 2008

The Likely Rise Of Unionization In The New Political Environment

The idea of revamping the National Labor Relations Act in favor of unions has been floating around for some time now, but legislation has stalled. No more. At the dawn of a new political regime, employers are bracing for monumental change.

Political analysts believe that Congress is likely to pass legislation titled the Employee Free Choice Act (“EFCA”) sometime in 2009, perhaps as early as the first 100 days of the new administration. The President-elect co-sponsored the legislation, and it is reasonable to expect him to sign it into law.

For those of you who have not been following the legislation, it is time to get up to speed. Generally, the EFCA would change labor law in three ways:

First, if enacted the law would require the National Labor Relations Board to certify a union after union organizers have gathered signed union cards from a simple majority of company workers. Currently, the certification process typically involves secret ballots where workers can vote without the union or employer eyeing their decision.

Second, after the card check certification, the EFCA would give the union and company 120 days to negotiate a new contract. If no agreement is reached, the union and company would be required to enter binding arbitration, where a government arbitrator would set the terms of the contract. Currently, if the union and company cannot agree to terms, the union may call a strike, and the employer may implement its last best offer or lock out workers, until eventually a compromise is reached.

Third, the EFCA would significantly increase penalties for unfair labor practices committed by employers during an organizing drive. Fines would rise to $20,000 per violation, and affected employees would be entitled to treble their back pay if terminated for participating in an organizing campaign.

The U.S. Chamber of Commerce has issued numerous statements in opposition to the legislation. “nions are now emphasizing the card check process in their organizing drives, not because they do not win secret ballot election—they win over 50—but because it eliminates any chances of losing. As an open-ended process, they can keep their campaign going as long as necessary rather than resolve the issue on a specific date as with an election. Not only are employees often targeted for intimidation, but the card check process also often leads to other coercive tactics, known as “corporate campaigns.” These campaigns are designed to pressure employers through demonstrations, false and misleading stories in news media, and other public expressions to recognize unions as the exclusive bargaining representative of their employees without having to go through an election. These tactics are how organized labor’s leadership intends to restore its declining membership base in the private sector.”

The Chamber adds: “In addition to its card check provisions, EFCA also contains a provision to impose mandatory interest arbitration of first contracts. Interest arbitration would set all the terms of the initial contract between an employer and a union, including wages and benefits, but also other provisions typically in collective bargaining agreements, such as outsourcing and union security clauses. While sometimes used in the public sector, binding interest arbitration is completely unprecedented in the private sector. The idea of government arbitrators determining contract terms and what business decisions must be taken to meet those commitments is simply beyond the pale.”

“Finally,” observes the Chamber, “EFCA includes provisions to increase penalties on employers for certain violations of the NLRA. The fact that these provisions apply only to employer violations and not to union violations illustrates the bias inherent in EFCA. Union coercion is no less contemptible than employer coercion.”

The US Chamber’s comments can be found here.

Organized labor, of course, has a completely different view. According to the AFL-CIO “Today, CEOs get contracts that protect their wages and benefits. But some deny their employees the same opportunity. Although U.S. and international laws are supposed to protect workers’ freedom to belong to unions, employers routinely harass, intimidate, coerce and even fire workers struggling to gain a union so they can bargain for better lives. And U.S. labor law is powerless to stop them. Employees are on an uneven playing field from the first moment they begin exploring whether they want to form a union, and the will of the majority often is crushed by brutal management tactics.”

“The current system is not like any democratic election held anywhere else in our society. Employers have turned the NLRB election process into management-controlled election process—the employer has all the power, controls the information workers can receive and routinely poisons the process by intimidating, harassing, coercing and even firing people who try to organize unions. On top of that, the law’s penalties are so insignificant that many companies treat them as just another cost of doing business. By the time employees vote in an NLRB election, if they can get to that point, a free and fair choice isn’t an option. Even in the voting location, workers do not have a free choice after being browbeaten by supervisors.”

The AFL-CIO’s comments can be found here and here.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 11/14 at 12:34 AM
California Employment LawEmployment LawLabor Law
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