Industry Braces for Possible New Labor Law

Pro-union groups have been trumpeting the notion that 60 million Americans would join a union if they could, nearly quadrupling the number of union workers now. Many meat industry workers, and others, will feel new pressure to join a union, if the newly elected Congress takes up the Employee Free Choice Act as expected. While the EFCA failed to become law the last time Congress considered it, the result may be very different this time with a Democratic majority in the House and Senate.

House Speaker Nancy Pelosi, D-Calif., has promised to reintroduce the bill sometime this spring. If it becomes law, it would fundamentally amend the National Labor Relations Act, which has guided the way union organizing campaigns and elections have been run for more than 70 years. The EFCA would do away with secret ballots in organization elections and eliminate confidentiality in union organizing elections. The bill would also increase civil penalties up to $20,000 per violation against employers who have been found to violate employees’ rights during an organizing campaign or first election drive.
Under the current system, employees can schedule a vote for union representation if they show the National Labor Relations Board—through signed authorization cards—that 30 percent of potential members want to join. Then, the NLRB conducts a secret-ballot election. If more than 50 percent of eligible employees vote for union representation, the union gets in. But unions only win about half the time in meat industry elections.
The current system allows workers to express their opinions privately and confidentially and gives employers time to present workers with the facts about unions.  Importantly, under the proposed bill, the secret ballot would be done away with and replaced by a card check system. The cards are often signed in the presence of a union organizer or a pro-union co-worker, and instead of being used to get an election, if 50% of the employees sign the cards, the union is in.
Employers should be concerned that under the proposed act, workers may not be able to obtain the information they need to make an informed choice about whether to unionize, and to express that choice in private, without fear of coercion, threats or retribution.
            According to one study, employees make very different choices when signing a card in view of a pro-union co-worker or organizer. In secret ballot elections, unions win just a little more than 50 percent of elections; in card-check elections that number jumps to more than 80 percent.
            The U.S. Chamber of Commerce has spoken out repeatedly against the card check system. In a Jan. 4 letter to members of Congress, Bruce Josten, executive vice president at the chamber, pointed to a 7th Circuit Court of Appeals opinion that found workers may sign authorization cards in union elections to avoid offending the person who has asked them to sign it or to get that “person off their back,” rather than out of a genuine interest in joining the union.
            “Unions are now emphasizing the card check process in their organizing drives, not because they do not win secret ballot elections—they win over 50%—but because it eliminates any chance of losing,” Josten wrote. “In addition, as an open ended process, they can keep their campaign going as long as necessary, rather than resolve the issue on a specific date with an election.”
           
As pro-business groups have argued against the act, union organizations have vowed to put their muscle behind the bill, which last time around had 44 co-sponsors in the U.S. Senate and 215 in the U.S. House. “We have even more supporters in the 110th  Congress, whose leaders have pledged to work to pass the Employee Free Choice Act,” said the AFL-CIO, which has declared passage of the act one of its highest priorities. However, even if the law passes, there is no guarantee it could survive a Presidential veto at least for the next two years. Employers may want to get involved by working with the U.S. Chamber of Commerce e-Advocates Action Center at www.voteforbusiness.com/capconn/alertdetail.aspx?AlertID=246.

Richard D. Alaniz is the senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the  U.S. Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Rick at (281) 833-2200 or ralaniz@alaniz-schraeder.com.