Firm Articles

THE "EMPLOYEE FREE CHOICE ACT" (the "card check bill") -- A STIMULUS PACKAGE FOR UNIONS -- HOW NON-UNION COMPANIES SHOULD PREPARE

The "Employee Free Choice Act" was passed by the United States House of Representatives in 2007, but never went forward into law. However it will soon reappear in the halls of Congress, in compliance with the campaign promises of many members of Congress and President Obama.

The name of the Bill could not possibly be more misleading! Actually it eliminates employees' rights to a secret ballot election conducted by the National Labor Relations Board ("NLRB"). It replaces secret ballot elections with a check by the NLRB of Union authorization cards signed by employees, under circumstances that are controlled by the Union, not by the NLRB. If the Union presents cards signed by more than a fifty percent (50%) of the employees the NLRB is required to "certify" the Union as the bargaining representative of all the Company's employees. This method of determining the so called "free choice" of employees has only one purpose -- to increase Union membership, and thus more dues money flowing into Union bank accounts.

Besides the "card check", there are other equally important revisions contained in this Bill that change the fundamental concepts underlying the Nation's Labor Laws, laws that have existed for over seventy-five (75) years.

To explain these, our Firm requested that Durwood Crawford post on our website the information that he has been providing to our clients and other interested organizations and companies. Crawford is the head of the Firm's Labor & Employment Section and has thirty (30) years of "real life" experience representing management regarding: Union organizing drives; negotiating with Unions; dealing with strikes; defending Unfair Labor Practice Charges ("ULP"); and many other types of issues arising before the NLRB. His responses to the most frequently asked questions about the Bill and what non-Union companies should be doing are as follows:

Changes in the Labor Laws = More Union Organizing

"This Bill is motivated by the Unions' declining success in winning NLRB secret ballot elections. According to the NLRB the Unions are now winning slightly less than fifty percent (50%) of these elections. The Unions insist that this results because the secret ballot election process takes too long, allowing management time to intimidate employees. (The NLRB is reporting that, on average, its elections are held within forty-two (42) days from the date the Union files a Petition for Election with the NLRB). The Unions claim that during this delay many companies threaten, intimidate, or even fire pro-Union employees, with the result that the Union loses its previous support. They further claim that the damages currently provided to employees who are discharged because of their support for the Union come too little and too late. They say that employers' discriminatory and dilatory practices not only cause a withering of support for the Union, but also if the Union wins the election, it suffers a disabling loss of its bargaining power.

Besides replacing the election process with the "card check," there are two (2) other features of the Bill that are just as radical, but have received much less attention in the media:

(1) The Bill contains penalty provisions, (beyond the present make-whole awards for employees). It would allow triple damages to be awarded to an employee who is fired (or suffers other loss) because of his/her Union activity. Obviously this creates a great opportunity for profit by a terminated employee, which will result in far more ULP claims (valid or invalid) from employees claiming that their Union activity caused the discharge, demotion, transfer, etc. This provision will also allow the NLRB to go directly to Federal Court for an injunction - instead of its having to use the existing ULP procedure.

(2) Since the National Labor Relations Act was passed in the 1930's, "collective bargaining" between a company and a "certified" Union has been the keystone of union/management relations. The standard of conduct for both sides in this bargaining has been that they must bargain in "good faith" in trying to reach an agreement. The Unions say that successfully proving a ULP based on a lack of a company's "good faith" is too difficult, and knowing this many companies approach the bargaining table without any intention of bargaining in "good faith" toward an agreement. Thus the Bill calls for mandatory arbitration if a contract is not reached by the parties after ninety (90) days of bargaining.

The Unions are correct in stating that it is usually difficult to establish a lack of "good faith" if the company has a knowledgeable and experienced negotiator. They thus say that arbitration is the answer. It should be remembered that a certified Union always has another alternative remedy against any private company -- it can call employees out on strike to try to force the company to relent to the Union's demands and companies may still "lockout" employees in certain instances. Even though arbitration is included in the Bill, these rights still remain. The requirement of arbitration may sound reasonable to the uninitiated. However, (in my opinion) it is the scariest part of the Bill. In my view there are insurmountable problems in using arbitration as a substitute for bargaining between the parties. They are the ones that know their industry and their competition.

Beyond some in the public sector, there are simply no arbitrators that have the necessary training and industry experience to create a Collective Bargaining Agreement ("CBA") from scratch for the parties. The job of the labor arbitrator (up till now) has been to interpret existing CBA's by deciding Union grievances, not creating CBA's for the parties. Thus, it will be almost impossible to find an arbitrator who has the necessary experience in the particular industry to create a CBA with work rules and obligations that are workable for both the company and the Union.

I have served as an employment arbitrator for the American Arbitration Association for eleven (11) years. Additionally I have been the management representative in over one hundred (100) arbitration cases involving Union grievances, and have assisted management in negotiating numerous CBA's, in many varied industries, but even with this experience I would feel incompetent to act as the arbitrator in the creating of an initial CBA between the parties. The simple reason is that the future of the company and of all of its employees could literally be destroyed by a well intended, but unknowing, stroke of an arbitrator's pen. Arbitrator's decisions are basically unappealable and granting an arbitrator power to make these decisions, (which should be made by the company's management) is a recipe for disaster. The collective bargaining process that has worked for 75+ years should be left in place.

All of these radical revisions will be fought over in the committees of Congress, but it cannot be over emphasized how important it is for business managers, individually and through their associations, to: (1) become knowledgeable about the existing laws; (2) express their views to their representatives in Congress; (3) understand the impact of any proposed changes; and (4) prepare their company now to deal with more Union organizing.

Regardless of what happens in the legislative process to make Union organizing easier, the NLRB can be expected to modify some of its own rules to do the same. The NLRB is a five (5) member Federal agency which issues Opinions and rules that greatly increase or decrease Unions' abilities to successfully organize non-Union companies. At present, it has only two (2) members! The three (3) vacancies will undoubtedly be filled with appointees who are sympathetic with the Unions.

The remedy for companies that desire to remain non-Union is simple - train your managers and supervisors to successfully deal with a future where the laws facilitate easier organizing by the Unions.

Training Supervisors

The first and best line of defense to Union organizing is the first line supervisor.

What They and Higher Management Need to Know

a. It can happen at their company! Sometimes upper management is reluctant to do training on this subject believing that such training might "plant a seed" -- giving employees the idea of forming a Union. A bad mistake - as many companies have discovered.

b. If supervisors don't have such training it is almost inevitable that they will commit some ULPs before management ever learns of the Union organizing - thus limiting what the company can do and say later.

c. They need to know how a Union makes their own job much more difficult, thus giving them a personal interest in the company staying Union free.

d. Too many ULPs can result in automatic certification of the Union by the NLRB, even if Congress makes no changes in the current laws.

In many companies, supervisory training (and even training of HR representatives) on this subject has been neglected in the last twenty-five (25) years.

As discussed above one of the major changes sought by the Unions is an increase in the damages allowed against companies that commit certain ULPs. Some such change would seem to have a good chance of passage, because almost all other Federal employment laws contain some type of penalty provision! Title VII, which prohibits discrimination because of race, sex, religion, etc and the ADA, allow penalty damages up to $300,000.00 -- depending on the size of the employer. Discrimination on the basis of age, or in violation of the FMLA allows doubling of actual damages. It will be difficult to effectively argue against allowing something comparable for employees who are discriminated against because of their protected Union activity. This change alone could force smaller companies, that commit ULPs, to become unionized simply because of the cost of litigating against the government in the NLRB's administrative process."

Durwood D. Crawford

February 25, 2009

Mr. Crawford has conducted seminars and training sessions for many business organizations and companies on how to prevent Union organizing, or deal with it if it is actually occurring. In the early 1980's, when such organizing was at its peak, Mr. Crawford developed a training film giving managers an inside look at a typical Union organizing drive. He was assisted in designing the film by a friend who had a successful background as a Union organizer, before becoming the Human Resource Manager for a large refining company. This film, and the accompanying training program, has been shown to many organizations and companies and is always praised for its effectiveness. For information in learning more about this, please call any of the Firm's partners, Durwood Crawford or contact the Firm Administrator at:

Goins, Underkofler, Crawford & Langdon, LLP

1201 Elm Street, Suite 4800

Dallas, Texas 75248

Phone: (214) 969-5454 Phone

Fax: (214) 969-5902

Website: www.gucl.com