President Barack Obama is changing the landscape of labor law through several actions that have been viewed as payback to organized labor for its support of his candidacy.
“Unions spent millions of dollars getting him elected and getting a senate that was more democratic-leaning in the hopes of passing primarily one major bill: the Employee Free Choice Act,” says Mike Stief, a partner with a specialty in labor and employment law at Jackson Lewis LLP.
EFCA passed the House of Representatives in the 110th Congress, but it fell short in the Senate. The act, as it was originally intended, is most likely not going to pass in the current Congressional session, nor anywhere in the near term, so the Obama administration has gone down the path of generatting labor law reform in several other different ways.
Smart Business spoke to Stief about how these reforms are affecting employers.
What are the goals of EFCA?
Basically, what EFCA would do, among other things, is change the way people join unions in this country. Historically, people have joined unions by voting in secret ballot, government-conducted elections. EFCA would take away that right by removing anonymity from the process. Under EFCA, in its current form, once a majority of employees signed union cards, the union would be recognized without an election.
If the bill doesn’t seem likely to pass, how is the president effectuating change?
Shortly after taking office, President Obama signed four executive orders which apply to certain federal contractors and certain subcontractors. There are several ways to get things accomplished. You can pass legislation to get things changed, but if you are a federal contractor, the president also has the option of signing an executive order and you may be bound. You’re receiving federal money, so the government has certain rights to impose obligations on you.
One such executive order is Order No. 13496, which came into effect on June 21, 2010. It requires federal contractors with contracts over $100,000 and certain subcontractors to post a notice in the workplace advising employees of their right to organize into a union. That is one significant aspect or payback, if you will. Now when employees walk by the time clock or bulletin board in the break room, they will be staring at a notice of their right to organize into a union, day in and day out.
What other changes has the president made that will affect organized labor?
The other one is the makeup of the National Labor Relations Board. The NLRB’s headquarters is in Washington, D.C. and there are five people who are members. The party in the White House gets to nominate three of the five and the party that is not in the White House gets to nominate the remaining two.
The president has nominated three people to the labor board, two of whom used to work as staff attorneys for unions, and one who does union side work with his firm in Buffalo, N.Y. So you’re going to have a very pro-union activist labor board rendering decisions that will be favorable to unions.
How could this affect labor issues?
The labor board could reverse certain decisions that exist today. What we are likely to see this labor board do is make it a lot easier for temporary employees that an employer may utilize from a temporary agency to vote in labor board elections. This labor board may also allow in a non-union setting for employees to have co-worker witnesses present during investigatory interviews that could lead to discipline. Most importantly, this labor board could through either rule making or through case decisions accomplish some of the things that EFCA was intended to accomplish.
Just like there is more than one way to skin a cat, there is more than one way to accomplish labor law reform. The labor board could shorten the time from the date the union files to have a vote to the date of the actual vote. Under the current law, the average is a 40-day period from the day the petition is filed to have the vote until the actual vote. The labor board could shorten that time frame to seven, 14 or 21 days, which would be a significant disadvantage to the employer community.
The labor board could grant union organizers certain access rights to employers’ premises or limit an employer’s free speech rights to communicate with its employees during this process. Those free speech rights were established by Congress in 1947. One controversial labor board member, Craig Becker, thinks employers should play little to no role in the entire union organizing process.
What do these changes mean for employers?
It means you have to be a lot more proactive than you have been. That is especially true if you are a federal contractor. Imagine one day you are informed by the government that you have to post a notice in the workplace advising your employees about their right to form unions. The employees may wonder if the employer in fact endorses or supports their right to form a union. Will supervisors be prepared to answer questions regarding the posting?
What can companies do to prepare?
They need to really take a look at their entire approach to remaining union free. They need to have a well-trained management team that will be able to help identify issues that may arise. Also, they need to do an issues vulnerability audit to find out what issues may make them vulnerable to union activity and correct those issues now, before the activity takes place. There is no doubt that we are going to see an uptick in union organizing activity. The time to plan is now, not when the union is knocking at your front door.
Mike Stief is a partner with Jackson Lewis LLP. Reach him at (412) 232-0138 or firstname.lastname@example.org.