May 2009
Senator Specter’s change in party affiliation has created much fanfare and has even prompted some to question what impact this will have on the Employee Free Choice Act (EFCA). Senator Specter has been quick to respond that he still opposes EFCA in its current form. It should also be noted that in addition to Senator Specter, other Senators, such as Senators Feinstein and Lincoln have signaled that some form of compromise bill is all but certain. Some of the alternative proposals that have been mentioned and/or introduced in Congress include terms for equal access, expedited elections, enhanced penalties against employers, and mediation and arbitration for negotiations. While unions continue to fight to pass the legislation “as is” (i.e. retain “card check”), the common denominator for alternatives to EFCA is the elimination of the hotly contested “card check” provision. Obviously, it is good news to hear that support for “card check” is waning in Washington; however, employers must not lose sight of the fact that any of the proposed changes – even if they result in a watered down version of EFCA – are bad for employers.
The National Labor Relations Modernization Act (NLRMA), introduced in March, provides some insight into how a compromise might shake out. The NLRMA closely resembles EFCA, but it replaces EFCA’s “card check” provision with a section that grants unions equal access to employees. That is, after an election date is set, employers are required to inform the union of all campaign measures it will use to counter the union’s organizing efforts and then provide the union with the opportunity to use similar measures to campaign in favor of the union.
Clearly, requiring equal access to unions during a campaign will reduce the effectiveness of employer campaigns. Another provision that is intended to reduce the effectiveness of employer campaigns (and which is likely to be offered as a concession to “card check”) is expedited elections. The strategy behind expedited elections is to limit the amount of time the employer has to educate its employees about the pitfalls of unionization. Thus, the likely result would be similar to “card check”; unions would have the ability to quickly organize employees with little to no opposition from employers.
So, what is the bottom line? Well, the final outcome of labor’s current efforts to make revolutionary changes to our country’s labor laws remains anybody’s guess. The announcements from Senator Specter and others are positive signs – but do not be mislead – substantial and detrimental changes to our labor laws are still in the works. Even if “card check” is removed, the alternative proposals and EFCA’s mandatory arbitration provision (which has remained somewhat under the radar) are equally as harmful. Therefore, it is imperative that you continue to take proactive steps to remain union-free. As a reminder, WS attorneys are available to meet with your management group to develop an effective union-free strategy.
Questions? For questions or comments concerning this topic, please contact an experienced Wessels Sherman attorney. Contact us.
