Is There a Union in Your Future

Table of Contents

Page

From PLI’s Course Handbook

38th Annual Institute on Employment Law

#18618

27

is there a union in your future?: EFCA and respect may play a big role

David J. Murphy

Morrison & Foerster LLP

Prepared on: July 24, 2009

The 5 Biggest Things Favoring Unions Now 1

Union Targets In A “New” Pro-union Environment 3

Where Are U.S. Unions Today? 4

Employee Free Choice Act (“EFCA”) 8

The RESPECT Act 22

The Political Future of EFCA and RESPECT 24

A New “Pro-Union” Attitude 26

What Employer’s Next Steps Should Be 29

Organized labor is on the brink of benefiting from a number of significant political and legislative developments that may greatly enhance its ability to organize previously union-free workplaces and industries. Given these developments, it simply no longer is the case that companies can rely on the dormancy of U.S. labor unions as their best and only protection for avoiding union issues being raised at their workplace. Instead, both the possibility of union organizing taking place and the risk that it would be successful have substantially changed. This article provides an overview of the key legislative developments and how they relate to union organizing issues at an actual business level, and then lays out a sound and effective business planning approach to these critical union issues.

The 5 Biggest Things Favoring Unions Now

There are five key things favoring labor unions in the United States right now. Each of them separately would enhance union prospects for successfully organizing employees at any company. Collectively, they constitute a potentially powerful force swinging the balance in the unions’ favor. These briefly are identified as follows:

1.  The Employee Free Choice Act (“EFCA”): EFCA as initially proposed would make major changes in American labor law, including changing from a secret ballot election approach for unions and imposing the possibility that a labor arbitrator would decide the terms of what a company’s initial contract with a union would be. EFCA already is pending, and was introduced in both the House of Representatives and the Senate on March 10, 2009. It already has been the subject of much debate, and is likely to be amended before its passage as discussed herein.

2.  The RESPECT Act: The RESPECT Act would significantly change which type of employees can be considered as “supervisors,” and thus be exempt from union organizing and union contracts. It works as a very close companion piece to EFCA to enhance a union’s organizing abilities.

3.  Obama Administration and Congressional Support: Simply put, no President since Franklin Delano Roosevelt has been more supportive of unions than President Obama. During FDR’s presidency, the modern labor union movement and our current labor laws came into existence. It is not a mischaracterization to state that President Obama would gladly give them a “re-birth.” His supportive message also can reasonably be expected to go a long way in changing U.S. workers’ attitudes about their own need for a union as well as its worth to them and their families. His supportive stance also likely will be mirrored in a labor-friendly Congress, which owes its Democratic majority in both the Senate and the House in substantial part to organized labor’s contributions of campaign money and election-day votes.

4.  A “New” NLRB: The National Labor Relations Board, as the federal agency responsible for enforcing labor law and supervising labor union activity in the private sector in the United States, obviously plays a greatly influential role in U.S. labor law. Besides actively pushing new pro-union laws, President Obama has the ability and already has taken steps to dramatically remake its membership as a vital force favoring unions in both its enforcement approach and its binding labor law decisions.

5.  A “New” Pro-Union Attitude: Not since the pre-Reagan era have unions been so widely praised by our political leaders as they are now. Along with this changing political perception is a changing attitude among the American workers themselves which is far more favorable to the possibility of unionization. Since these workers themselves are the ultimate decision-makers on this issue, this point is critical, and will be further explored in this article along with all of these other foregoing factors operating in favor of unions now.

Union Targets In A “New” Pro-union Environment

Organized labor in the U.S. has developed a number of “new targets” to benefit from what it considers to be a new and developing pro-union environment. No general listing or industry announcement of these “targets” typically exists or is any way required to be disclosed by the unions. Notwithstanding this, news reports and other legal developments have highlighted what these likely “new” targets will be. A brief summary is as follows:

·  Technology (Wall Street Journal 2009: “Unions are expected to focus on the tech sector, where they see strong potential to increase membership”) [1]

·  “Green Economy” Jobs (BNA 2009: Joint Sierra Club/Union Study on “Job Quality in the New Green Economy;”[2] Silicon Valley Business Journal 2007: “Unions target emerging tech”) [3]

·  Service Industry (Workforce Management 2009: “retailers, restaurants and healthcare facilities” and “any kind of service industry” will be “first on the hit list”) [4]

·  Financial Services or any other Government-assisted Businesses and Industries (Wall Street Journal (2009): “Big Labor threatens banks on ‘card check’”) [5]

·  Any multi-nationals with a significant U.S. presence (due to increasing protectionist sentiments and labor union focus)

Besides these “new” targets, unions also will re-focus their efforts on prior, more traditional union targets. These “re-newed” union targets are described as follows:

·  Any prior targets of union organizing

·  Any businesses with unionized competitors

·  Any businesses with larger groups of workers in same or similar jobs

·  Any businesses with a “blue collar” or technician workforce

·  Any businesses in concentrated “union” (usually urban) areas

Obviously, U.S. labor unions are “opportunistic” organizers, and also will take on whatever other organizing situations may arise for them. However, in terms of a categorization of their focus, this listing of both “new” and “re-newed” organizing targets is an effective working summary of the unions’ own collective focus for these efforts.

Where Are U.S. Unions Today?

Unions in the United States have been in a steady period of decline over the past 50 years. From their high-water mark of representing over 35% of the American workforce in 1955, unions declined to 20.1% of the U.S. workforce in 1983, and then further to only 12.1% of the U.S. workforce at the end of 2007.[6]

Even these numbers are misleading as far as they relate to the private sector, as nearly 36% of government workers are unionized. Instead, the actual union representation level in the private sector was only at 7.5% through 2007.[7]

The reasons for the union decline in the United States are multi-fold. Some factors are internal to the United States, and involve the changing workplace, both from a “blue collar” to service and technology business approach and from a move of manufacturing facilities to the southern parts of the United States. The effects of globalization and foreign competition on the process have only added to the reduction in union membership. Moreover, unions themselves have had serious image and corruption problems, as well as a reputation for failure in industries such as Detroit’s “Big 3” automakers.

Other modern workplace factors have contributed to this decline. Employees in the modern workforce have much higher mobility rates, changing jobs more frequently and thereby being less concerned about whether a union or its seniority benefits are available at their workplace. Social welfare laws protecting workers’ rights increasingly have been enacted at both the federal and state level, supplanting the need for similar protections from labor union bargaining that motivated union organizing in the past. Further, modern human resources approaches have been greatly successful in persuading employees that an outside union representative is not needed to give them a voice or fair treatment at the workplace.[8]

Despite all of these problems as well as these difficult economic times, unions nonetheless have seen a small increase in their support among American workers in recent times. At the end of 2008, union memberships had risen by 0.3% to a 12.4% level among all workers, and specifically by 0.1% to a 7.6% level among private sector workers.[9] On an overall basis, in the last two years, these new union level figures reflect an approximately 3% increase nationwide. It also is worth noting that, given the very low figures for unionization throughout the more recently industrialized southern parts of the Unites States, the levels of union support and its increasing nature are actually much higher in the northern, midwestern and Pacific Coast areas of the United States, with California, New York and Illinois leading the way.[10]

Ignoring this recent union increase, the American labor unions lay much of the blame for their longer-term historical decline on what they consider to be a broken law in the form of the current NLRA and a broken system in how the NLRB currently operates. In the view of labor union advocates, delays and other problems in the NLRB union election system have opened the door to management efforts to shut down organizing and change the minds of employees about whether they ever need a union.

According to unions and their supporters, the most important factor operating against successful union organizing is a “$4 billion consulting industry” that has arisen and is used by employers in over 80% of union organizing situations to unfairly “coerce” employees not to select a union.[11] This is carried out primarily in the form of management-conducted so-called “captive audience” “campaign” meetings held at company offices during employees’ working hours. In the unions’ collective view, the entire system under the NLRA, including particularly the extended time period now allowed under current NLRB election processes for these management-conducted campaigns, must be revised because it simply “does not ensure that employees can select a representative free from coercion.”[12]

The unions also specifically complain that they face extended legal hearings and their accompanying delays if employers raise disputes about the election process. At least in the view of one former NLRB Chairman, Professor Gould of Stanford Law School, these cases can be “a Bleak House-like nightmare running on into months and years!”[13]

As two union lawyers succinctly summarized all of this in a paper recently presented to the American Bar Association:

The current representation process is flawed by excessive delays, unequal access to workers, and routine unfair labor practices by employers with insufficient remedies. Workers who endure these difficulties and win an election are then greeted with vehement, often unlawful, employer opposition in obtaining a first contract. In sum, the NLRB election system is poisoned by employer coercion.[14]

The unions’ assertions about the NLRB’s delayed processes and inadequate remedies are supported by at least one prominent and influential then-Republican political leader, Sen. Arlen Specter (R. Pa.), who authored a law review article along with a Harvard Law school professor completely agreeing that these problems exist.[15] Sen. Specter and these union critics focus on specific complaints that, under current NLRB law and its remedies for unlawful conduct, an employee found to have suffered unlawful discrimination or discharge due to an employer’s ULP generally receives only back pay, less offset for any other earnings. They also focus on complaints that, for these same ULPs or any other unlawful conduct in an employer’s bargaining with unions, it only must post a notice at the workplace acknowledging its violations and commitment to refrain from repeating them.[16] However, as these same critics also emphasize, under no circumstances will either the NLRB or the courts or the NLRB ever dictate to the parties what must be included in the substantive terms of any union contract, as that instead is left entirely to the parties and their bargaining negotiations under current law.[17]

It is against this backdrop that U.S. labor unions with the assistance of the Obama Administration are attempting to move forward with an ambitious pro-union legislative agenda. An examination of EFCA’s and RESPECT’s place in this legislative agenda and its effects on the union organizing process, as well as the role of the public’s increasingly favorable perception of unions, is set forth below.

Employee Free Choice Act (“EFCA”)

EFCA, as it originally was re-introduced in the current Congress after failing to be enacted in the last Congress, would make three major changes to the current U.S. labor law under the NLRA, briefly summarized as follows:

(1) EFCA, in its current version, would require employers to recognize unions based on a “card check” of signed union authorization cards from a majority of employees in a designated bargaining unit, subplanting the current system of a “secret ballot” vote.

(2) Whenever a union and an employer cannot agree on a first contract after only 90 days of initial bargaining, EFCA would require mandatory government mediation and binding “interest” arbitration to decide the terms of the contract, supplanting the current freedom of contract approach where no contract terms can be compelled by law.

(3) EFCA would substantially strengthen penalties against employers charged with interfering with workers’ rights under the NLRA during union organizing or negotiation of a first contract, and would also provide for previously unavailable injunctions to stop these types of alleged violations by offending employers.

Obviously, simply from the description of these changes, it is apparent that they would represent significant and major changes in the current U.S. labor law. This description of EFCA’s legal changes may actually underestimate its practical effects and the full extent to which union organizing would thereby be benefitted.

One major obstacle to EFCA’s progress to date has been its “card-check” approach and the resulting loss of the “secret ballot” election long-used by the NLRB. When the NLRA was first enacted in 1935 while FDR was president, it provided for union certification either on the basis of a union authorization card check or a secret ballot election conducted by the NLRB. When disputes arose about this card check approach, the NLRB itself first decided as a matter of practice that it would rely only on secret ballot elections, and Congress later formally adopted this as part of the NLRA itself by congressional amendment in 1947.[18] As a result, under current U.S. labor law, while an employer in certain circumstances voluntarily may recognize a union based on a majority of employees signing union authorization cards, the NLRB now is “permitted . . . to resolve representation disputes by certification . . . only by secret ballot election . . .”, thereby giving the employer the right to insist upon this secret ballot election process.[19]