Publications: WILL YOU BE UNIONIZED IN 2009?

Today the National Labor Relations Act guarantees that a private sector employer’s workforce, if the employer insists, can be unionized only after a government-supervised secret ballot election in which a majority of the employees vote for union representation. The employer now gets a reasonable amount of time before the vote, usually five or six weeks, to make its case to its employees against unionization.

The proposed federal Employee Free Choice Act (the “Act”) will do away with the protection of a secret ballot election and replace it with the so-called “card check.” The “card check” is a procedure by which union organizers, generally face-to-face, convince employees to sign union authorization cards that expressly allow the union to represent the employees for purposes of collective bargaining. Under the proposed Act, an employer must recognize as its employees’ collective bargaining representative any union that collects signed cards from 50% plus one of any appropriate bargaining unit.

The Act further requires that if an employer becomes unionized but cannot reach an agreement over a first labor contract with the union within 120 days, the matter must be submitted to binding interest arbitration. That means that an arbitration panel, rather than the union and employer themselves, will set the workers’ initial wages, hours and other terms and conditions of employment, including the employer’s possible participation in union-sponsored pension and health and welfare benefit plans, many of which are now substantially underfunded. It is anticipated that some unions will disagree with the employer at the bargaining table in the hopes of getting a better deal before the arbitration panel.

Unsurprisingly, organized labor has made passage of the Act its very top priority for 2009. The Act will make private sector union organizing much easier. Unions will be better able to sign up members “under the radar” without the employer’s knowledge. Employers may be unable to respond to unionization efforts during any pre-election six week campaign because there will be no election and most likely no campaign. And by eliminating the secret ballot, unions will have greater ability to compel workers to sign authorization cards even if the employees really do not want a union.

The Act passed the House last year but died in the Senate. In light of last week’s election results, the chance for the Act’s passage during 2009 has been greatly enhanced. If it does pass, current non-unionized employers will be significantly more likely to become unionized.

Employers that prefer to remain non-unionized should start preparing now, as it seems likely that the Act will pass. If you wait, the unions may organize your workers before you have a chance to respond. We recommend the following initial steps:

• Assess Workforce Vulnerabilities. Determine which departments or other sectors of your workforce are most vulnerable to possible unionization. Where are the employees most disgruntled? Where are you behind market regarding wages and benefits? Where is there a rogue or highly unpopular supervisor? Identify these problems and fix them now.
• Follow The Media. Unions sometimes make their intentions known. For example, in the Chicago area, unions have publicly announced their intention to organize healthcare workers, particularly at hospitals. Follow the media and especially your trade publications.
• Vigilance. Employers must be on the constant lookout for indications that a union organizing drive may be underway. Are employees congregating before and after work, or during lunch? Do primarily passive employees suddenly become hostile or outspoken? Do normally gregarious employees become quiet? Are persons unfamiliar (i.e., union organizers) hanging out in the parking lot or making home visits?
• Train Supervisors. Supervisors usually are an employer’s first line of defense in a union organizing drive. They know, or should know, their employees and know how to persuade them. But supervisors must be trained to persuade legally. For instance, while supervisors can provide employees with verifiable facts as to why they should not sign a union authorization card, e.g., the cost of union dues, the possibility of a strike – they cannot threaten, coerce or make promises. Given that your supervisors’ speech and conduct will be judged by a union-friendly National Labor Relations Board, it is critical that your supervisors be trained to communicate effectively and lawfully.
• Update Workplace Policies Now. Once an employer knows that a union is afoot, it becomes much more difficult, under the law, to modify existing employee policies. If your policies need revision, do it sooner rather than later.

In 2003, when Illinois passed a card check law for public sector employers, it took the unions less than a week to start targeting and successfully organizing literally thousands of Illinois municipal employees. The unions will be ready again if the Act passes.

We strongly suggest that employers prepare by taking the steps outlined above. Please contact an attorney in the Labor & Employment Practice Group if you have questions.