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A New Day for Union Relations: EFCA, Obama, and the NLRB

by Mark I. Schickman

We have been telling you about a big legislative change to the federal labor law around the corner, titled the Employee Free Choice Act (EFCA). If passed (which appears likely), it will require labor union recognition based on employee petitions without any union election. Of course, that move all but eliminates any employer participation in the union election process.

Currently, it works like this: A labor union business agent will arrange with one employee to pass a petition around within a work unit, and once a majority of the unit signs, the National Labor Relations Board (NLRB) declares an election place, date, and time that will allow all unit employees to vote. An official employee list is provided by the employer, and the union agrees to or challenges the list — with the NLRB playing referee. After a campaign period (a month is typical), the NLRB conducts the election and certifies the results. After the election, there is a one-year bar to any new certification or decertification election.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including labor unions and organizing

During the campaign period, employers have their chance to convince their employees not to certify a labor union. The most typical employer argument is that employees can best communicate directly with management without going through a union, and therefore, paying union dues is just a waste of money. The employer is subject to certain complicated restrictions during the campaign, however:

  • It can’t make any promises about what it will give the employees in the future.
  • It can’t add any discretionary increase to employees’ salary or benefits or provide any new perks.
  • It can’t spy to learn or ask employees who is voting for the labor union.
  • It can’t threaten or intimidate employees.

Running union campaigns is a complex legal procedure — but at least it gives the employer a chance to present its case. That chance disappears under the Employee Free Choice Act, the biggest change in union legislation in three generations.

Audio Conference: Employee Free Choice Act Battle Plan: Preparing for Labor’s New Organizing Tool

Obama behind the wheel
Usually it’s the White House, not Congress, that changes the course of labor policies. Ronald Reagan severely wounded the union movement in 1981. The air traffic controllers union, PATCO, dared Reagan to fire striking airport controllers (putting flights at risk), and he took the dare. After he replaced all the striking experienced controllers (putting flights at risk), how could union plumbers claim that building safety justified their higher rates? The movement rebounded under Bill Clinton and was again beaten by the Bushes.

President Barack Obama will have the chance to replace five NLRB members, so his presence will be felt there. Remember that the National Labor Relations Act (NLRA) has only broad parameters, and NLRB policy fills in those gaps.

For example, employers can’t monitor employee conversations or prohibit employee workplace conversations about union-organizing activity — that’s an unfair labor practice designed to discourage union activity. Fair enough. But does that same logic prevent employers from monitoring e-mail traffic or prohibiting workplace e-mail about union organization since e-mail has become the dominant form of employee conversation? That’s the NLRB’s decision, not Congress’, so those policies will be crafted by presidential political appointments to the NLRB.

Even before those appointments, Obama’s executive orders are changing labor policy covering federal contractors with contracts above $100,000. First, anything spent to encourage or discourage union membership is no longer subject to federal reimbursement. Second, after the one-year postelection bar, government contractors will no longer be allowed to post a notice advising employees of their right to decertify the union. However, the new order does require federal contractors to post a notice of employees’ rights to organize. Finally, when any new federal contractor is selected, it will have to give hiring preferences to rank-and-file employees of its predecessor.

The partisan push and pull of union-organizing rights has seesawed through nearly every executive administration, so these new orders reflect no fundamental “change” in political practice. Obama has the power to alter union labor policy in an image befitting a Democratic Chicago political organizer. The question is whether this economy will permit him to do so without dragging down vulnerable employers.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at (415) 541-0200.