Pro-Labor Initiatives: Preparing for the Resurgence of Unionization

President Obama ran on an employee rights platform. The prevailing Democratic Party supports labor and the new administration is pushing the pro-labor agenda. As the labor initiative gains momentum under the Obama administration, employers must prepare for the possibility of sweeping change in workforce issues. Experts remind us, however, to remain calm but not complacent.1 We need to arm ourselves with information and create a contingency plan to ready our work environments for the existing and potential changes.

by Denise Kay, Esq., SPHR
EPS President • Denver, Colorado

dkay[at]EPSpros.com

President Obama ran on an employee rights platform. The prevailing Democratic Party supports labor and the new administration is pushing the pro-labor agenda. As the labor initiative gains momentum under the Obama administration, employers must prepare for the possibility of sweeping change in workforce issues. Experts remind us, however, to remain calm but not complacent.1 We need to arm ourselves with information and create a contingency plan to ready our work environments for the existing and potential changes.

Legislative Branch – Proposed Legislation

Employee Free Choice Act

The Employee Free Choice Act (EFCA) was reintroduced in Congress on March 10, 2009 in both the House and Senate. The related bills, H.R. 14092 and S. 5603, propose to “amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.”4 The “efficient system” referred to is otherwise known as “card check,” a highly controversial means of establishing unions within workplaces. 

EFCA, as introduced, would amend the organizing rules provided by the National Labor Relations Act (NLRA) by allowing unions to bypass private ballot elections in favor of the card check process, permitting authorization cards to be signed (without privacy or oversight) by members of the collective bargaining unit. Employers would be compelled to recognize a union if 50% plus one of the employees in the bargaining unit sign authorization cards. 

According to the Society for Human Resource Management (SHRM), EFCA would essentially eliminate the secret ballot election during the union certification process, since unions would rarely, if ever, choose a private ballot election over card check.5 SHRM’s position is that a federal government supervised private ballot election is the best method for protecting the privacy rights of individuals in choosing whether to join a union and opposes card check because it could force employees to make an important decision in public and perhaps in front of colleagues union representatives, or others invested in the organizing process about whether to support a union.6

Another disconcerting component of EFCA is the imposition of mandatory arbitration for first contracts after only 90 days of collective bargaining and 30 days of mediation. Professionals from both labor and management agree that it often takes longer than 90 days to iron out a first contract. To impose binding arbitration after only 90 days would likely work against both parties, as it would serve to impose unwanted employment conditions on both employees and employers.

Further, EFCA, as drafted, creates increased penalties, including back pay plus liquidated damages, against employers that discriminate against employees during organizing campaigns yet fails to reciprocate with increased penalties for labor groups that engage in similar unfair or coercive tactics and conduct. Such an imbalance of unfair labor practices penalties causes management and employer groups to oppose this legislation and argue that illegal or unethical conduct by either party should be equally remedied.

Since its introduction, EFCA has not moved in Congress; however, all signs indicate support of the bill. The success of the bill hinges on it obtaining cloture in the Senate and, while questionable, the recent defection from the Republican Party of Pennsylvania Senator Specter, and the undetermined victor of the Minnesota Senate seat, keep us guessing as to the bill’s future. For example, after announcing his opposition to the labor-backed Employee Free Choice Act as a Republican, Specter has become a key player in an effort to negotiate a compromise on the bill.7

RealSolutions for Today’s Employer

Businesses need to prepare for a unionization surge and assess their workplaces for employee satisfaction. Undertake efforts to inform employees about the positive aspects of the employer and educate supervisors on the impact of unfair labor practices during organizing campaigns.

RESPECT Act

The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT ACT), if reintroduced in the 111th Congress, would redefine the term “supervisor” in the NLRA, thus increasing the number of those eligible to unionize.8 The RESPECT Act, as drafted last year, would amend the definition of “supervisor” under the NLRA, requiring, among other changes, that for a worker to be labeled a supervisor, he or she must spend the majority of the workday in a supervisory capacity.9

According to bill sponsor Senator Chris Dodd (D-CT), the “bill would correct an unfair policy created by a series of decisions by the National Labor Relations Board (NLRB) last October, in which the NLRB ruled that many charge nurses are supervisors, even though they have no authority to hire, fire, or discipline other employees. Under these rulings, only 10 percent of a worker’s time in a supervisory capacity is enough to lock him or her out of a union.”10

“Prevailing Wage” Pushed by House and Labor Unions

Congress is also considering legislation that would expand the Davis-Bacon Act of 1931 by requiring contractors participating in wastewater-improvement work funded by federal-state low-interest-loan program to pay local “prevailing wage” for their services, despite federal minimum wage requirements, which are often lower than the prevailing wage.11 The $20 billion bill was passed by the House in March 2009. Representative Connie Mack (R- Fla.) attempted to remove the pay rule from the water-projects bill because she argued that it raise project costs and harm job creation, but she was unsuccessful.12 This is important legislation to watch because Democrats and Labor Unions agree that their ultimate goal is to incorporate “prevailing wage” rules into all projects that receive some form of federal funds or assistance.13

RealSolutions® for Organizations Concerned About Pending Pro-Labor Legislation

Education on Pending Legislation

Because of the Legislative initiatives underway to alter union-management relations, employers and business groups are well within their rights to educate and inform on the issues in front of Congress.  Any informational dissemination must avoid violating section 8 of the National Labor Relations Act (NLRA). Under this section, it is an unfair labor practice to:

For example, it is fair and accurate to outline the propositions of EFCA and list the reasons business is opposing the legislation; however, it is inappropriate to suggest that “our business will shut its doors if this legislation is passed,” indicating a threat of loss of job for those that support EFCA. 

Communicating as Constituents with Congressional Representatives

Further, business owners and economic influencers should reach out to their Congressional representatives to let them know their positions on the proposed pieces of legislation. Talking points, statistics, and positions can be found readily on the internet and many professional organizations, industry coalitions, and Chambers have pre-established position statements and drafted communications ready for dissemination to Congress. Meetings with Congressional reps or their staffers may be even more influential and arranging a personal meeting on Capitol Hill is just a phone call away. Face-to-face time with constituents is a surefire way to ensure your Representative hears your business’ opinion with respect to the legislation. 

Educating Supervisors and Management on the “Dos and Don’ts” And “Cans and Can’ts” During Organizing Campaigns

This time might present just the right opportunity to educate management on the National Labor Relations Act and related legislation. An ounce of prevention in the form of education can go a long way toward preventing unfair labor practice charges. Training should include at a minimum:

Executive Branch – Executive Orders

Executive Orders Pertaining to Labor

President Obama’s first endeavors in the White House included issuing four pro-union executive orders and revoking contrary executive orders initiated by the previous administration. On January 30, 2009, President Obama signed Executive Order 13496, entitled, “Notification of Employee Rights Under Fair Labor Laws,” explicitly revoking former President Bush’s Executive Order 13201 requiring federal contractors to post notices advising non-union employees of their rights not to organize and their right to opt out of paying the portion of the union dues unrelated to the administration of a collective bargaining agreement. The Obama Administration’s opposing policy states: 

The attainment of industrial peace is most easily achieved and workers' productivity is enhanced when workers are well informed of their rights under Federal labor laws, including the National Labor Relations Act (Act), 29 U.S.C. 151 et seq. As the Act recognizes, "encouraging the practice and procedure of collective bargaining and . . . protecting the exercise by workers of full freedom of association, self organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection" will "eliminate the causes of certain substantial obstructions to the free flow of commerce" and "mitigate and eliminate these obstructions when they have occurred." 29 U.S.C. 151. Relying on contractors whose employees are informed of such rights under Federal labor laws facilitates the efficient and economical completion of the Federal Government's contracts.15

Accordingly, effective May 2009, federal contractors are required to post a notice advising of their rights to form and join a union and to bargain collectively.16

RealSolutions® For Today’s Business

Federal Contractor Employers bound by Executive Order 13496 should immediately remove former “Beck Posters” and replace them with the newly released DOL notice when available. Employers should review and revise all handbook information and other communications to ensure they do not conflict with the new posting message.

The Executive Order entitled, “Economy in Government Contracting,”17 prohibits reimbursement by federal agencies for employer expenses intended to persuade employees to exercise or not to exercise their rights to organize as a union and bargain collectively. Employers must cover all costs associated with printing, consulting with legal counsel, or otherwise attempting to educate and influence worker voting with respect to organizing efforts. The third Executive Order signed January 30, 2009, “Nondisplacement of Qualified Workers under Service Contracts,” seeks to ensure the consistency of employment in a follow-on service contract won by a new service provider.18 The Order requires that when a successor contractor wins a contract for a service renewal for the same service and at the same location, that contractor will give its predecessor’s employees the right of first refusal to stay instead of hiring a wholly new workforce. 

Finally, President Obama’s fourth pro-labor Executive Order, signed on February 6, 2009 and effective immediately, “Use of Project Labor Agreements for Federal Construction Projects,” authorized federal government executive agencies to require every contractor or subcontractor on a large-scale government-funded construction project to negotiate or become a party to a Project Labor Agreement (PLA) with one or more labor organizations. A PLA is a pre-hire collective bargaining agreement between contractors and one or more unions that establishes the terms and conditions of employment for a specific construction project. As expected, the reaction from organized labor vastly differs from the business community, who feels this broad sweeping Order diminishes competition for contracts and may cause extension of PLA’s into non-government contract based operations. 19

The Executive Order also directs the OMB to consult with the Secretary of Labor and other officials and provide to the President within 180 days of execution (August 2009) recommendations about whether broader use of a PLA, with respect to both construction projects under Federal contracts or projects receiving federal financial assistance, would help promote the “economical, efficient and timely completion of such projects.”20

RealSolutions® for Organizations Grappling with Pro-Labor Initiatives and Organizing Campaigns

An easy acronym for the things an employer cannot do during a unionizing campaign is “NO TIPS” – threats, interrogation, promises, or spying. Inappropriate employer actions during a campaign include such things as questioning employees about their support or opposition of a union, allowing employees to hold anti-union meetings during work, isolating union supporters so they are unable to speak to others, promising benefits or increased wages for union avoidance or threatening to reduce or remove benefits if employees vote in a union.21  However, there are many activities employers can engage in during an organizing initiative, including:

Businesses and organizations concerned about sweeping workplace law reform and governmental imposition of employee rights and benefits must organize and wage a counter-attack now. Gathering knowledge, consulting with industry experts and business organizations, and contacting elected officials is the first step in getting a voice in the process. Educating the workforce and encouraging employee involvement, adhering to best practices in human resources management, and establishing rewards and recognition programs that meet your workforce’s needs are also positive steps to remaining union-free. Finally, for those under an obligation based on federal contracts or federal funding assistance to collectively bargain, take all precautions to post proper notices and maintain fair and legitimate employee-management negotiations. Remember, calm but not complacent, will ensure we enter the future of labor-management relations with grace and dignity.

For additional information on this and related HR topics affected by the Obama Administration, Please see related article: The Challenge of Change: The Obama Administration’s Impact on HR, authored by Laurie Jones, March 2009.

______________________________

1 Mark Vickers, i4cp, “Will Obama Radically Change Workforce Issues?” http://www.14cp.com/trendwatchers/2008/11/14/will-obama-radically-change-workforce-issues, November 14, 2008.

2 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=
f:h1409ih.txt.pdf. 

3 http://thomas.loc.gov/cgi-bin/bdquery/z?d111:SN00560: 

4 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=
f:h1409ih.txt.pdf.

5 SHRM Governmental Affairs Department, “Employee Representation,” Feb. 2009, Copyright 2009, SHRM. Reprinted with permission. 

6 Id.

7 Manu Raju, “Arlen Specter Settles in as a Democrat,” Politico, May 21, 2009, http://www.politico.com/news/stories/0509/22793.html. 

8 http://www.opencongress.org/bill/110-h1644/show.

9 http://dodd.senate.gov/index.php?q=node/3796. 

10 Id.

11H.R. 1262, http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR01262:|/bss/111search.html. 

12 H.AMDT.29 (A002), http://thomas.loc.gov/cgi-bin/bdquery/D?d111:2:./temp/~bdEUJg::|/bss/111search.html. 

13 Christopher Conkey, “Labor-Backed Contract Rules Advance”, http://interactive.wsj.com/article/SB123716120020635573.html, March 15, 2009; Alice Graves, i4cp TrendWatcher, Issue 459, May 15, 2009, “Labor Initiative Gains Momentum Under New Administration, http://www.i4cp.com. 

14 Dawn D. Bennett-Alexander and Laura P. Hartman, Employment Law for Business, 5th Ed., 2007 The McGraw-Hill Companies, Inc., p. 686.

15 Federal Register / Vol. 74, No. 22 /Wednesday, February 4, 2009 / Presidential Documents, p. 6107, http://edocket.access.gpo.gov/2009/pdf/E9-2485.pdf. 

16 Note that the DOL was tasked with creating the notice but as of the publishing date of this article, a posted notice was not available through www.dol.gov. 

17 http://www.whitehouse.gov/the_press_office/economy_in_government_contracting/

18 http://www.whitehouse.gov/the_press_office/nondisplacement_of_qualified_workers_
under_service_contracts/ ; see also, Laurie Jones, “The Challenge of Change: The Obama Administration’s Impact on HR,” EPS, Inc. E-Newsletter, March 2009, http://www.epspros.com/KNOWLEDGECENTER/
TheObamaAdministrationsImpactonHR/tabid/480/Default.aspx. 

19 Jackson Lewis, “President Obama Issues Fourth Pro-Union Executive Order,” Feb. 9, 2009, http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1634. 

20 Brian Nuterangelo, “President Obama Signs Executive Order that Will Impact Federal Construction Contractors,” Feb. 10, 2009, http://www.wileyrein.com/publication.cfm?publication_id=14191. 

21 Dawn D. Bennett-Alexander and Laura P. Hartman, Employment Law for Business, 5th Ed., 2007 The McGraw-Hill Companies, Inc., p. 673.


About the Author

Denise Kay, Esq., SPHR, serves as the President of Employment Practices Solutions, Inc., a certified minority-owned employment consulting business which serves to assist clients with employee relations issues and improve workplace performance through effective human resource practices. EPS provides independent workplace investigation services, conducts company-wide training and individual sensitivity training, provides employment-related mediation services, and consultants serve employment/HR experts in legal matters. 

Denise received her law degree, cum laude, from the Georgia State University College of Law in 1999 and is licensed to practice in Colorado. She practiced exclusively in the area of employment and labor law with firm of Littler Mendelson, P.C. in Denver. As a litigation attorney, Denise worked with management in defending wrongful termination, discrimination, harassment, and contractual disputes. She is a trained mediator. She is certified as a Senior Professional in Human Resources (SPHR) through the Society for Human Resource Management (SHRM) serves on SHRM's Colorado State Council as the Legislative Affairs Director.  In addition, she is the Community Coordinator for the Colorado Bar Association's Domestic Violence: Make It Your Business Program.

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