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Major Threat to American Businesses is Back on the Table

Union boss Richard Trumka, head of the AFL-CIO, is predicting the return of one of the biggest threats to American employers – “card check” legislation.  Also known as the Employee Free Choice Act (“EFCA”), card check legislation allows unionization by ambush.  Employees would lose the right to vote for or against unionization under the protection of a secret ballot.  Once a majority of employees sign union cards, no election would be held and the union would be recognized upon presenting these cards to the National Labor Relations Board (“NLRB”).  If card check legislation passes, employees can become unionized without an election and, more importantly, even before the employer even knows a union is campaigning for its employees!  The EFCA would also force employers to concede to unions during collective bargaining, because failure to quickly reach a collective bargaining agreement would result in binding arbitration to set the terms of employment.  Such a law has never existed in the private sector.  Even though the EFCA failed during Obama’s first term, notwithstanding a Democratic supermajority in Congress, Trumka predicts some form of card check legislation will pass during the second term.

Another alternative is the return of the “quickie elections” rule, either through the NLRB’s rulemaking process or through a change to the National Labor Relations Act by Congress.  The NLRB issued a rule substantially shortening the time period leading up to a union election, effectively depriving employers of the opportunity to present their views on unionization before employees vote on the issue.  In May 2012, the United States District Court for the District of Columbia ruled that the “quickie elections” rule is invalid because it was promulgated without a quorum of NLRB members.  Because the decision was based on the process used to issue the rule rather than the substance of the rule itself, there is a good chance the NLRB will try again.

With card check legislation back on the table, there is a real danger that the “quickie elections” rule will be considered a moderate approach – a viable compromise.  However, the rule was anything but moderate.   The rule was purported to put unions on an equal footing with employers in elections, but unions already have substantial advantages in that they can begin campaigning before an employer even knows about the union and that they have greater freedom in making promises to employees.  Unlike unions, employers are not even permitted to make truthful promises to employees during a union campaign.  At the time the rule was issued, unions were already winning more than two-thirds of elections, so the idea that these changes are needed to level an unfair playing field makes little sense.

Shortening or eliminating the period for employers to campaign is not only bad for employers, it is bad for employees.  Unions are often not good for employees.  Because employers must bargain collectively, they cannot provide individual pay raises for good performance or make other accommodations on a one-time basis.  Unions also make it harder for employers to fire problem employees who make everyone else’s job more difficult.  On top of all this, unions charge dues and other fees which often do not generate a corresponding benefit to employees.  A recent Forbes article  called union dues a “prohibitively bad investment” for employees, as their dues money pays for costly political campaigns instead of work to benefit employees.  One-sided union campaigns do not help employees make informed decisions.  Union leaders, rather than employees, stand to benefit the most if such rules are implemented.

Employers need to be aware that these union election changes are back on the table so they can contact their representatives in Congress and state their views.  Employers should also evaluate their employee relations.  Are your employees happy?  Do they believe their compensation is fair?  Do they believe they are treated fairly?  Do you provide competitive benefits and do your employees know this?  Making a few changes now to keep your employees happy may help you stay union-free as union organizing becomes more aggressive.  Finally, have you prepared for a union attack?  Do you and your supervisors know what to say?  If not, now is the time to prepare.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.