Dramatic labor law changes pushed in Legislature, Congress

This spring, job providers have faced double jeopardy at the hands of state and national labor unions.

At the state level, our recently adjourned Legislature considered a hotly contested measure backers called the “Worker Privacy Act” and employers dubbed the “gag rule”. It was the top legislative priority for the Washington State Labor Council, AFL-CIO in 2009.

In Congress, the national AFL-CIO and a host of other major unions has reintroduced the deceptively named “Employee Free Choice Act,” which employers know better as “card check”. It effectively eliminates employees’ right to a secret ballot in unionization elections and instead would recognize unions at companies through a majority of publicly signed union cards.
What are these measures about, what are their chances of becoming law, and what should Washington employers be doing now?

The Worker Privacy Act
The Worker Privacy Act is a model bill introduced in various labor-friendly states by the local affiliate of the national AFL-CIO. Its core purpose is to silence employers’ effective communication with workers about unions during an organizing drive and later, during collective bargaining. 

Although federal labor law clearly allows it, the bill would prohibit employers, on company time and on company premises, from calling a meeting where attendance is required, in order to present the company’s side in an organizing campaign. 

This purpose is cleverly cloaked in language purporting to protect workers from indoctrination. It prohibits employers from requiring attendance at a meeting, or forcing an employee to listen to, or participate in, any communication about political or religious matters. 

Reasonable at first glance, the key is the definition of prohibited “political” speech. Among the laundry list of forbidden topics like elected officials, pending legislation, ballot measures and political parties, one finds reference to “labor and other mutual aid organizations”. Those six words, snuck into the definition of “political” matters, are the crux of the bill.

Employers large and small bristled at the message it would send for Washington to become the first state in the nation to pass such an unconstitutional, unworkable, and unnecessary law. Unconstitutional because it takes away rights federal law protects (and the U.S. Supreme Court rejected last June in Chamber of Commerce v. Brown); unworkable because of the breadth of speech its ambiguous provisions would prohibit; and unnecessary because Washington employees are already protected from coercion in political, religious and union activities.

The bill did not survive its first major legislative deadline. Legislative leaders in mid-March removed the bill from deliberation when communications surfaced between the bill’s backers and some legislators appearing to link action on the bill to campaign contributions. Later, Gov. Chris Gregoire stated she would have vetoed the bill anyway this year. So while the Legislature has not adjourned as this is written, and no bill is truly “dead” until that time, it appears unlikely this bill will have received further treatment in 2009.

Legislative leaders from both houses are, however, on record supporting the core concept of the bill so there is every indication it will return in 2010.  

Card Check Would Replace Secret Ballot
The same forces behind the Worker Privacy Act also claim their top congressional priority is a bill aimed at taking away worker privacy in the choice whether to unionize. 

The Employee Free Choice Act now pending in Congress is also about tilting the legal landscape dramatically in favor of labor unions, but in a different way. It has three main provisions. The first, mentioned above, effectively eliminates the secret ballot union election and allows a union to be certified on a majority showing of signed union cards. Second, the bill allows labor unions to mandate an employer submit to binding arbitration over the terms of a first collective bargaining agreement if negotiations cannot be completed in the short time frame of 120 days. Finally, the bill stiffens penalties on employers (but not unions) for unfair labor practices alleged during the course of organizing or bargaining.   

The primary concern over card-check recognition of unions has been over the unreliable nature of the union authorization card as an indicator of support for a union. Stories of coercion and intimidation in card-check campaigns are widespread and it is well known that many employees will sign cards in the presence of a union organizer, often in the employee’s own home, with no intention of voting, in secret, to unionize. That is why it is common for unions to collect a supermajority of cards before seeking an election because they know those numbers will not hold up in a private vote. 

Many have pointed out EFCA’s binding arbitration provision is as bad as its card-check provision.  Existing law does not require employers and unions to reach an agreement but only bargain in good faith subject to economic weapons (e.g., strike; lockout) that might force resolution. But this provision changes that in two critical ways. 

First, it removes a union’s incentive to bargain in good faith, and instead encourages unreasonable demands that might force more favorable terms in arbitration.  Second, it puts the establishment of the first two-year contract in the hands of a government-appointed board with no right of appeal. It allows this unaccountable body to set wages, benefits and work rules for private companies with no detail on what criteria it will use. 

Will card check pass? No one can say for sure. It has the support of President Obama and probably a majority of the members of the U.S. House of Representatives, but it appears to lack — as it did in 2007 — the support of the 60 U.S. Senators necessary to overcome a filibuster and advance the bill.

As recently as late March, three companies — Starbucks, Costco and Whole Foods — floated a compromise that would replace card check with greater union access to employees, faster deadlines for elections and increased penalties for unfair practices on both employers and unions. This “third way” was quickly panned by both sides of the EFCA debate, but illustrates the fluidity of the arguments as they are likely to unfold over the course of this year.   

What Can Employers Do Now?   
Mark Toth, chief legal officer for Manpower North America, writes on his blog, “the best way to avoid union organizing activity in your company is to be fair and consistent and to treat employees with dignity and respect at all times.” Beyond that statement, though, there are concrete things employers can do to prepare for possible passage of EFCA or something like it.
First, work with management to know and understand the provisions of EFCA and how it might affect the company, how to spot possible signs of organizing activity and permissible responses, and review issues like wages, benefits and supervisor treatment that are often root causes of organization. 

Second, create or review workplace solicitation policies that would cover union activity on the premises and ensure such policies are even-handed, neutral and comply with applicable National Labor Relations Board standards.     

Third, and perhaps most importantly, educate employees on the legal significance of union authorization cards — that they are legally binding proxies giving unions virtual power of attorney over the employee’s vote whether to join the union, there is almost no way for employees to get the cards back if they change their mind, and employees are under no obligation to sign them.


At a Glance
The federal Employer Free Choice Act, also known as “card check”, would eliminate employees’ rights to a secret ballot in unionization elections. Instead, it would recognize company unions through a majority of publicly signed union cards.

Card check would eliminate the secret ballot and allow a union to be certified on a majority showing of signed union cards.

Card check has the support of President Obama and the House of Representatives, but currently lacks the support of 60 U.S. senators to overcome a filibuster and advance the bill.
The Worker Privacy Act or employer gag-rule bill, SB 5446 and HB 1528, are the state-level versions of the federal card check proposal.

Both the Employer Free Choice Act and Worker Privacy Act are the top legislative priorities of labor unions nationally and locally in 2009.

The U.S. Supreme Court rejected the issue of card check last June in its decision on Chamber of Commerce v. Brown.