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Federal labor legislation continues to evolve and will most likely return to center stage as the unions continue to press for the enactment of the EFCA and the RESPECT Act once the health insurance reform issues are addressed. As discussed below, both proposed laws will affect both unionized and non-unionized employers and should be monitored.

The EFCA
It appears that the EFCA does not have the congressional support it initially was advertised as having. The EFCA was reintroduced in the House and Senate on March 10, 2009 with the same provisions as those introduced in 110th Congress and the House of Representatives indicated that it would pass the law as proposed; however, modifications to elements of the bill may need to occur to get the legislation passed and, further, the Senate may not get the 60 votes necessary for a cloture vote to beat a possible filibuster. 

The EFCA, as proposed and supported by now President Obama and Vice President Biden, initially provided:

1.         Card check in place of secret ballot elections; no notification to employers and no withdrawal of  authorized cards—once signed, an employee cannot revoke his or her card.

2.         Mandatory mediation with the Federal Mediation and Conciliation Service (FMCS).

3.         After 120 days, if no initial collective bargaining agreement (CBA) has been reached, then the FMCS will appoint an arbitrator.

4.         An arbitrator will impose on the employer what he or she believes to be appropriate wages, hours and other terms and conditions of employment.

5.         No ratification of the initial CBA by employees.

6.         The initial CBA will be for a period of 2 years.

7.         Mandatory injunctive relief against employers for committing unfair labor practices under §10(l) of the National Labor Relations Act (NLRA).

8.         $20,000 fine for each employer violation of the NLRA.

9.         Reinstatement of employees who are unlawfully terminated under the NLRA with triple back pay.

Recently, Senator Tom Harkin (D-IA), with the backing of the unions, has started to prepare for a political showdown on the EFCA.  Frustrated with the stalemate, Senator Harkin stated that he intends to bring the bill to a vote on the Senate floor, which should put pressure on, and possibly embarrass and isolate, the three former supporters of the legislation who are now waffling on the bill:  Senators Arlen Specter who, after switching political affiliations is now a Democrat (D-PA), Dianne Feinstein (D-CA), and Blanche Lincoln (D-AR).  Now that Al Franken has been seated as the democratic senator from Minnesota, Senator Harkin and the unions hope that this pressure will give them the 60 Senate votes they need to override a filibuster. 

Although Senator Harkin has not specified a date for the vote, he is taking action to garner support for the EFCA because there has been insufficient movement by these Democrats on acceptable amendments.  Recently, he met with several other Senate Democratic leaders, including Senate Majority Leader Harry Reid (D-NV), to develop a strategy for moving the bill forward.  If necessary, Senator Harkin will evaluate alternatives, including ways to “tinker” with the provisions to pacify the moderate Democrats and improve the chances for passage.  The essential elements of the EFCA, including the card check and arbitration provisions, seem to be intact but are being contested.

It seems likely that any Democratic senators voting against the cloture vote to end a filibuster, or who vote against the current EFCA bill itself as currently written, will be targeted and retaliated against by the unions, which may try to use their money and membership to get these individual senators unseated.  Remember, at one time all 60 democratic senators told the unions that they supported the EFCA.  Now the unions are saying: We paid you for your vote—now vote for what we paid you for.  Union membership has been declining and the unions, especially the IBT and the UFCW, have realized that they can’t succeed when there is a secret ballot election.  They need this legislation to survive. Over the last two years Hoffa has increased union spending on representational activities by 31%.  In 2006 the IBT spent $47.2 million.  This increased to $56.7 million in 2007 and, according to the LM-2 report filed this year, in 2008 the IBT spent $61.8 million.   Likewise, in 2008, under the direction of Joe Hanson, the UFCW spent $68.5 million on representation activities—a 45% increase from the $47.8 million it spent in 2006. 

Although there is a continued resistance to the EFCA, some believe that it has a less than even chance to pass in its present form. If organized labor can not pass all of the EFCA, its leaders may look to President Obama’s new, democratically controlled National Labor Relations Board (NLRB) for greater protection. While nothing would be as effective as the EFCA, the NLRB could:

1. Shorten the election time to less than the current 42-day period.
2. Issue more bargaining orders for employers to recognize a union where the employer committed serious unfair labor practices.
3. Engage in rule making for more union-favorable rights and remedies.
4. Force arbitration in egregious unfair labor practice cases.
5. Speed up decision-making and issue more injunctions against employers.

What should employers do and when? Besides auditing the organization’s current environment, culture, policies and problems, it is essential that an employer conduct both strategic and tactical planning to achieve short-term and long-term goals. Employers should watch, listen and oppose the EFCA and, further, during the lull in the legislative process, take affirmative steps regarding the employment relationship to demonstrate that unions are unnecessary. This could include: 

1.         Taking a positive approach and conducting managerial and supervisory training— now.

2.         Establishing your organization as a world-class employer with a culture of not  signing documents without knowing all of the information.

3.         Understanding the negatives of having a union and being aware of signs of union organizing.

4.         Building relationships with employees; remember that an employer is only as good as its relationship with its employees. Use job evaluations and other tools for building relationships. 

5.         Establishing a culture of trust and open dialogue. 

6.         Committing to your organization and employees; developing an “Open Door” policy and an effective Peer Review Process.

7.         Using simple employee attitude surveys and self-audits and understanding irrelevant assumptions and generational differences.

8.         Reviewing win-win values to make unions unnecessary and eliminating barriers to effectiveness.

Organized labor will watch closely to see who opposes this legislation.  The Democrats in Congress who do not support the EFCA will likely face challengers in the next general election who are promoted and backed by organized labor and their millions of dollars and millions of members.  Unions can no longer wait and they just may have the support they need.  President Obama recently said that he supports unions and he will support the EFCA. 

The RESPECT Act

The Re-empowerment of Skilled and Professional Employees and Construction Tradesworkers (RESPECT) Act, which would amend the National Labor Relations Act (NLRA), has less impact than the EFCA but also less opposition. Essentially, the RESPECT Act would make more individuals “employees” under the law and there would be fewer individual supervisors. Why is this important? Supervisors should support their company’s culture and views that unions are unnecessary. Further, supervisors can not be organized under the NLRA. Currently, supervisors are generally leaders and can generally effectively communicate the employer’s message. Employers need supervisors to not only run their companies but, just as important, to drive the proactive, non-adversarial culture in these difficult economic times.   

Congress carefully crafted the NLRA to balance the competing interests of management and labor when considering whether an employee is a supervisor. According to the definition in Section 2 (11) of the NLRA, a supervisor is:

[a]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action...[so long as this authority] requires the use of independent judgment.

The RESPECT Act would change the definition of "supervisor" by altering Section 2 (11) in the following three ways:

• Striking the word "assign";

• Striking the phrase "or responsibly to direct them"; and

• Inserting the phrase "and for a majority of the individual's worktime" after the       phrase "in the interest of the employer."

These changes would largely eliminate the position of "supervisor" as a legal classification since very few managers spend the majority of their work time hiring and firing employees. Through seemingly minor statutory alterations, the RESPECT Act, by redefining the criteria used to determine whether an employee is a supervisor, would destroy the balance that currently exists between management and organized labor. As a result, productivity and efficiency could decrease—an undesirable development under any economic conditions, let alone during the current recession, and it would ultimately be easier for unions to organize companies. 

I predict that shortly after Labor Day, September 7, 2009, when Congress reconvenes, every effort will be made to pass the EFCA in its original form or in a modified version.  I will keep you posted on the progress of both bills.  If you hear about any developments or have any questions about either of the proposed laws, let me know—I am interested in your thoughts. You can e-mail me at tpk@kclegal.com or call me at 414-423-1330.   In the meantime, consider a program to demonstrate that unions are unnecessary.

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