Card Check Bill Would Expand Power of Organized Labor by Timothy M. McConville, Esq.

Organized labor’s allies in Congress continue to pursue major legislation to increase organized labor’s ability to unionize private-sector workplaces across the country. The legislation, commonly known as the card check bill, would amend the National Labor Relations Act (“NLRA”), the federal labor relations statute that applies to the vast majority of private-sector employers in the United States. The card check bill (S.560, H.R.1409) would revise the NLRA by adding provisions to ease the unionization of employees and allow an arbitrator to impose a collective bargaining agreement on the employer, union, and employees.

If passed, the new law would be a game-changing event, easily the most significant revision to labor relations law since the passage of the NLRA itself in 1935. In 2008, more than 96% of private-sector employees in Virginia were union-free, according to economists Barry T. Hirsch and David A. Macpherson. The card check bill would impose a clear and present risk of unionization on many that have never had to experience union organizing.

The U.S. House of Representatives passed the card check bill in the last Congress, but the bill failed in the Senate. President Barack Obama has stated that he supports the passage of the bill. Some in Congress have suggested the introduction of alternative legislation to accomplish some, but not all, of the card check bill’s purposes. What, if any, action will ultimately occur remains to be seen.

The most significant changes proposed by the card check bill include:

1) Elimination of the Right to a Secret-Ballot Election. Employers would no longer have the right to insist on a secret- ballot election conducted by the National Labor Relations Board (“NLRB”).

2) Mandated Card Checks to Unionize Work Places. Under the bill, the union would submit authorization cards signed by employees to the NLRB, and if the NRLB finds that a majority of employees in a bargaining unit has signed valid authorizations designating the union as their bargaining representative, the Board would not direct an election but would certify the union as the exclusive representative.

3) Mandated Mediation after Ninety Days of Bargaining. If, after ninety days of bargaining over the first contract, the union and employer fail to reach an agreement, the union may send the dispute to mediation by the Federal Mediation and Conciliation Service (“FMCS”).

4) Mandated Binding Arbitration. In many ways, this provision is the most significant change proposed by the card check bill. If, after thirty days of mediation or such additional period as the parties may agree upon, the employer and union do not reach agreement on a first contract by mediation, the bill requires the FMCS to refer the dispute to an arbitration board. The arbitration panel would have the power to settle the dispute and impose terms upon the parties which would be binding for two years. Combined with the NLRB’s current contract-bar rule, which prohibits NLRB elections while collective bargaining agreements are in effect, the compulsory arbitration provision is intended to insulate the union against removal by employees in a decertification election for a two-year period. This part of the bill represents organized labor’s intent to seal its control over a bargaining unit once it wins that control through the card check process.

5) Increased Back-Pay Awards Against Employers of Three Times Wages. If the NLRB finds that the employer has discriminated against an employee based on union activities during the union organizing campaign or bargaining over the first contract, the NLRB would be required to award back pay, and in addition, two times that amount as liquidated damages.

6) New Civil Penalties of up to $20,000 per Violation. The bill would require the NLRB to impose civil penalties on employers who willfully or repeatedly commit certain unfair labor practices during union organizing or bargaining over the first contract.

The proposed changes to the NLRA are part of organized labor’s efforts to stem declines in union membership rates and to increase control over employees and employers. While card checks are available under current law, employers confronted with union demands for card check recognition have the right to insist that the NLRB conduct a secret-ballot election. Union officials favor the card check process because union organizers often engage in card signing campaigns without the employer’s knowledge. As a result, union organizers can use a variety of arguments and tactics, including harassment, misinformation, and intimidation, to convince workers to sign cards without the employer having any opportunity to educate workers about how unionization will affect them.

To protect themselves and their employees from union organizing activity, employers are well advised to:

Review and Revise Employer Policies. Valid and enforceable policies relating to solicitation, distribution, and access to the premises can be important tools for limiting organizing activity. The NLRA prohibits discriminatory enforcement of such policies based on union activities.

Communicate with Employees About the Risks of Unionization. Employers can effectively arm employees with the confidence to stand up to union organizers’ pressure to sign cards by educating employees about the risks of signing cards and bringing a union into the work place. The communications should be reviewed by counsel to ensure they comply with the NLRA.

Train Supervisors in Labor Relations. The NLRA regulates what management can say and do in response to union organizing activity, and supervisors need to have a good understanding of the rules. Supervisors often are the employer’s best advocates against unionization and ensuring that they have a working knowledge of the issues will give them the ability to convince employees to reject unionization. Supervisors should also know how to detect union organizing activity so that the employer can respond.