by Jonathan Kane, Esq.
With news from Capitol Hill that the “card-check” provision has been dropped from the Employee Free Choice Act (EFCA), employers need to be concerned that passage of the controversial pro-union legislation is now more likely than ever.
The “card-check” provision was always intended as a bargaining chip to be taken off the table as a concession. The provision would have required employers to recognize unions after a simple majority of workers signed cards, rather than after a secret-ballot election.
Now that it has been stripped out to facilitate the 60 votes needed in the Senate to prevent a filibuster, a major stumbling block to enactment has been removed.
3 new EFCA threats
In exchange for dropping card checks, EFCA backers gained three incredibly powerful proposals that will dramatically increase union ability to win elections.
• Quick elections in five to 10 days after 30% of workers sign cards indicating their support for a union. The National Labor Relations Board (NLRB) would run the elections, but the union will be able to control election timing. That will make it difficult for employers to make the case for remaining union-free.
• Union access to employers’ property. This raises powerful private property issues, but the bottom line is that the EFCA will allow union access to the workplace. That will make it easier for union organizers to persuade employees to vote for union representation. A nagging question: Who will compensate employers for the work time lost?
• No “captive audience” speeches. Employers wouldn’t be able to require employees to attend anti-union sessions.
The key to union success is the quick elections.
Mandatory arbitration remains
While powerful and attractive to unions, the “access to property” and “captive audience speech” proposals could well be used as additional bargaining chips to secure the single most pernicious of the EFCA’s provisions—mandatory arbitration.
Mandatory arbitration remains in the proposed statute, and it’s the legislation’s single most important component. Not only does it mandate a contract, it totally changes the education component of campaigns and validates the union promise of “more.”
Getting employees to choose not to be represented by a union means making sure they understand that the collective-bargaining process does not automatically guarantee more of anything. It is a give-and-take process driven by the relative economic power of both sides: the power of the union and its bargaining unit, and the power of the employer.
Under mandatory arbitration overseen by the Federal Mediation and Conciliation Service (FMCS), the government guidelines will predictably tilt toward organized labor. It likely won’t consider many proposals that truly represent sensitivity to the membership’s needs or desires, and it won’t address competitive issues affecting the employer’s workplace. The predictable result will be inflation that could hurt the entire economy.
The mandatory arbitration contract is most threatening to employers with multiple facilities. The obvious union tactic is to organize one, obtain the mandatory contract and then use that as an organizing tool at other plants.
What employers should do
It is time to conduct vulnerability assessments and take appropriate action so you don’t have to confront quick elections if the EFCA becomes law. It will effectively accelerate the election timetable, and employers must operate at all times in election mode.
That means creating and maintaining a pro-employee atmosphere. Everyone in ranks must believe in it and embrace behavior and values that keep employees satisfied with their work and your company.
The current drop in the president’s popularity in the polls and widespread concern about the economy could hinder the EFCA’s chances for passage. Many believe it will cause inflation and cost jobs.
But President Obama is one of the most pro-union presidents in U.S. history, and it would be naïve to think dramatically pro-labor legislation won’t be enacted during his presidency.
How we handle, listen to and communicate with employees on a daily basis will never be more important.
Jonathan Kane is a partner in the Philadelphia and Berwyn offices and chairman of the Labor and Employment Group for Pepper Hamilton LLP (www.pepperlaw.com). Jon can be reached at (610) 640-7803 or firstname.lastname@example.org.
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