The continuing decline of union membership in the United States is nothing new. As organized labor attempts to reverse this trend, it is confronted with the National Labor Relations Board (NLRB), appointed by President Bush, which some feel is biased against organized labor.
Last summer, John Sweeney, president of the AFL-CIO, wrote that the “NLRB has been perverted into a dangerous enemy of workers’ rights.”
In light of Bush’s re-election, unions are concerned. A particular worry is the pending review by the NLRB of the card check-neutrality agreement procedure. An employer agrees to recognize a union when the majority of its employees sign authorization cards. During this procedure, the employer agrees to remain neutral.
This procedure completely bypasses the NLRB’s established representation procedure. Critics say that this neutrality agreement denies employees an important statutory right and is abused by unions through intimidation or bribery.
If the pending NLRB review results in elimination or a severe restriction of this procedure, unions are once again stuck with the “enemy.” As a result, unions and their supporters in Congress have reintroduced the Employee Free Choice Act. The proposed section dealing with union recognition is as follows.
- If a majority of employees in a unit appropriate for bargaining have signed authorization cards, the union is certified as the bargaining representative.
- There will be no representative election and no opportunity to persuade employees that a union is not necessary. As a result, unions avoid an employer’s election campaign. Unions often feel that employers use these campaigns to force employees to oppose the union.
The act also calls for the creation of procedures requiring mandatory bargaining, mediation and arbitration to reach an initial union contract. This represents a major and unprecedented change in bargaining, preventing an employer from implementing a final offer after an impasse is reached. The section states:
- The parties shall meet and make every reasonable effort to reach an agreement within 10 days, or as otherwise agreed from the written request of the collective bargaining representative.
- After the expiration of 90 days from the date that bargaining began, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute, and a mediator will be appointed.
- After the expiration of 90 days from the date that bargaining began with the mediator, either party can request that the service refer the dispute to an arbitration board.
- The arbitration board shall resolve the dispute, and its decision shall be binding upon the parties for two years, unless amended during that period by written consent of the parties.
The act also adds new, stronger remedies for unions against employers.
- Violations of this section will be subject to a mandatory injunction in federal court sought by the board.
- Triple back pay will be awarded.
- A civil penalty of up to $20,000 per violation may be imposed.
What kind of effects could this act have, if passed?
- Incorporating card checks into the National Labor Relations Act and mandatory first contract arbitration marks a radical change which effectively deprives an employer of its free speech rights under section 10(c) of the act by precluding any opportunity to communicate with its employees before certification.
- Since bargaining will result in arbitration, the normal willingness to give and take will be replaced with posturing for position in arbitration.
- The legislation reflects the unions’ belief that the NLRB certification procedure is fatal to successful union organizing. Under the proposed procedure, the unions would no longer have to deal with the enemy in the certification process.
C. JOHN HOLMQUIST JR. is of counsel in the Bloomfield Hills office of Dickinson Wright. He has been practicing in the area of labor and employment relations for nearly 30 years. For additional information, please visit www.dickinsonwright.com.
