Since it was first introduced, the Employee Free Choice Act (EFCA) has been a lightening rod. Labor loved it, business hated it, and there was little middle ground.
“Card check” was the main battle site; both sides knew that replacing secret ballot elections with card signing would be a game changer, giving unions an unparalleled advantage in organizing. But even with a supposedly filibuster-proof Democratic majority in the Senate, labor couldn’t get it done.
It’s not over yet, though. The spirit, if not the exact content, of EFCA is still alive, and the National Labor Relations Board (NLRB) seems the likeliest place for unions to finally win the day. The NLRB is stacked in favor of organized labor. Craig Becker, an SEIU and AFL-CIO attorney, in April 2010 became the second union attorney on the Board, joining Chair Wilma B. Liebman, who is a former lawyer for the Bricklayers and Allied Craftsmen, and for the International Brotherhood of Teamsters.
The effects of two union attorneys on the Board could be immense. As Stewart Acuff of the Utility Workers Union of America explained, “If we aren’t able to pass the Employee Free Choice Act [in Congress], we will work with President Obama and Vice President Biden and their appointees on the NLRB to change the rules governing forming a union through administrative action.”
Could the Board really do that? Legal experts say it has broad discretionary power to issue rules implementing provisions similar to EFCA. With Liebman and Becker leading the way, the NLRB could circumvent the need for Congressional action on EFCA and issue rules on card check, shortened election periods, and employer involvement in unit determination.
The new Board also may reverse a number of important pro-business rulings issued earlier in the decade by the Bush Board. Liebman wrote strongly worded dissents to these and many other decisions, and as Board chair, her previous disagreements could become the roadmap for reversing them. Important issues up for grabs include:
What is a “supervisor?” In its 2006 Oakwood Healthcare, Inc., decision, the Bush Board clarified and expanded the definition to the great chagrin of unions. Not only is the new Board likely to reverse this ruling, Congress is expected to revive consideration of the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act, which also would overturn it.
Can an employer lawfully maintain a policy barring non-business use of its e-mail system? For example, could an employer permit e-mail solicitation for Girl Scouts but bar solicitation for union activities? Old Board said “yes.”
Do employees in non-union workplaces have a right to have a representative of their choosing at disciplinary meetings? Old Board said “no.”
In Harborside Healthcare, Inc., the Board in 2004 ruled that pro-union activity of a supervisor warrants overturning a representation election if it “tended to have such a coercive effect on the employees that it was likely to impair their freedom of choice in the election.” In her dissent at the time, Liebman wrote, “The majority’s approach threatens to deprive unions of their natural leaders in the workplace.”
Can union salts (union employees who seek employment at companies the union is targeting) always be considered employees within the meaning of the NLRA? The Bush Board said “no.”
Besides these measures, how far could the NLRB go in changing union election rules? Apparently, the Ethernet’s the limit. The Board is exploring electronic-voting methods for unionization elections. In early June 2010, it issued a request for information to contractors who can provide "secure electronic voting systems" for remote and on-site elections. The board also asked for information about safeguards to ensure "that votes cast remotely were free from distractions or other interferences, including undue intimidation or coercion."
What’s wrong with e-elections? Employer advocates fear they could be used to circumvent the current secret-ballot process and favor unions. Some attorneys are interpreting the request for information as a step toward Internet or telephone balloting, which they argue could favor unions.
Currently, unionization votes overseen by the NLRB at private-sector employers are typically cast in person via secret ballots on company property. With e-elections, there's nothing to stop unions from inviting employees to a bar or party to vote together “to show our solidarity," which could lead to peer pressure and intimidation.
Any of the changes discussed here will make it harder for employers to maintain a direct working relationship with employees. It can be done, though, with the right preparation. The essentials are to:
Determine the vulnerability of your organization to a card check campaign
Educate your management, including your board of directors, so that they understand the mechanisms and consequences of EFCA
Reduce the perceived need to join a union by fully engaging employees in the critical elements of your organization.
Train all management to recognize and effectively deal with the first signs of a union card organizing campaign
Optimize the credibility and accessibility of your corporate communications processes and media
IRI Consultants has the resources that can help prepare businesses for these monumental changes in American labor law. Click on any item below for more information.
Corporate Campaign Vulnerability Assessment
Rapid Response Teams
Readiness Manual/System