The Employee Free Choice Act Secret Ballot Elections OR Conlpulsory Enhanced Penalties For Unfair Labor Practices Mandatory Interest Arbitration This article was written to address the wide­ B. Sections ofthe NLRA Targeted by EFCA ly discussed Employee Free Choice Act (EFCA) 1. The primary Federal Labor Relations Law in the which was refiled on March 10, 2009 by members private sector is the National Labor Relations Act (NLRA). of the U.S. Representatives as HR1409. This Bill The centerpiece of the NLRA is Section 7, 29 USC §158. was lastfiled in the 1l0th Congress as HR800. The "Employees shall have the right to self-organiza­ House approved the Bill by a recorded vote of241­ tion, to form, join, or assist labor organizations, 185. HR800 was sent to the Senate on March 1, to bargain collectively through representatives of 2007 and considered as S7877. Debate began and their own choosing, and to engage in other concerted a cloture vote, needing 60 votes, fell short 51-48. activities for the purpose of or other mutual aid or protection, and shall also have A. Politics the right to refrain from any or all ofsuch activities except to the extent that such right may be affected by Since that vote, Democrats have increased their majority an agreement requiring membership in a labor organi­ in the House by 20 seats (with Republicans losing 20 seats). zation as a condition of employment as authorized in More significantly, Democrats and those sitting in the Dem­ section 158(a)(3) of this title." (emphasis supplied) ocratic caucus have increased their Senate majority to 58 2. Section 8, 29 USC §159, includes employer and seats. The Senate seat, declared by the Minnesota union unfair labor practices, including protections against Election Commission as being won by , remains discriminatory discharge and prohibitions on bad faith or re­ unresolved, and is in the Courts. Assuming that 59 Dem­ fusal to bargain. ocrats, will be voting on a party line basis, that moves the 3. Section 9, 29 USC §160, addresses the process by Democratic sponsors (and organized labor) one vote shy of which employers are obligated to collectively bargain with cloture. Lost in the 60 vote Debate is the fact that, in the pri­ labor organizations. Ordinarily, employers may bargain with or Congress, Senator (R-PA), and then Senator labor organizations when they are selected by an uncoerced , had co-sponsored S7877. President Obama continued on page 38 is certain to sign EFCA if it reaches his desk. The question is whether Senator Specter and all members of the Democratic caucus would support a cloture vote on EFCA, making its passage into law certain. However, Senator Specter recently stated that he can no longer be counted on as an EFCA sup­ porter, but he could change again after his next Republican primary. Increasingly, Senate Democrats who formerly fa­ vored EFCA are wavering, and Democratic co-sponsors have shrunk to 39. This matter is far from decided.

APRIL,2009 "BUY FROM THE ADVERTISERS 37 Labor Issues continued from page 37 Under the NLRA, an employer may lawfully volun­ majority of employees in an appropriate unit as their exclu­ tarily recognize a labor organization based upon a "show­ sive representative for purposes of collective bargaining. ing of interest", evidence that an uncoerced majority of em­ ployees in an appropriate unit demand representation by Section 9(a) of the NLRA, 29 USC §159(a) states in a labor organization. By statute and case law, an employer pertinent part: can also lawfully reject a demand for voluntary recogni­ "Representatives designated or selected for the pur­ tion, forcing either employees or a labor organization to file poses of collective bargaining by the majority of the a petition for secret ballot election with the National Labor employees in a unit appropriate for such purposes, ,Relations Board ("NLRB") to obtain recognition (or, alter­ shall be the exclusive representatives of all the em­ natively, they can strike or picket to obtain recognition). ployees in such unit for the purposes of collective Section 9(c)(1)(a) of the NLRA contemplates an em­ bargaining tn respect to rates of pay, wages, hours of' ployer declining to recognize a union and permits a la­ employment, or other conditions of employment ..." bor organization to file a representation petition with the This section of the NLRA already permits recognition NLRB. Section 9(c)(1)(a) provides: without a secret ballot election. "(1) Whenever a petition shall have been filed, in Section 9(b) further provides: accordance with such regulations as may be pre­ "The Board shall decide in each case whether, in scribed by the Board...the Board shall investigate order to assure to employees the fullest freedom in such petition and if it has reasonable cause to be­ exercising the rights guaranteed by this subchapter, lieve that a question of representation affecting the unit appropriate for the purposes ofcollective commerce exists shall provide for an appropriate bargaining shall be the employer unit, craft unit, hearing upon due notice. Such hearing may be con­ plant unit, or subdivision thereof ..." (emphasis ducted by an officer or employee of the regional of­ supplied) fice, who shall not make any recommendations with An appropriate bargaining unit is understood to mean that respect thereto. If the Board fi nds upon the record of employees seeking representation from their employer for col­ such hearing that such a question of representation lective bargaining have a community of interest - have related exists, it shall direct an election by secret ballot and or integrated jobs, common supervision, wage schedules, ben­ shall certify the results thereof." efits, and terms and other conditions of employment. continued on page 39

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38 "BUY FROM THE ADVERTISERS IN CONSTRUCTION OUTLOOK" APRIL,2009 Labor Issues continuedfrom page 38 ployees engaged (or who, upon their employment, Section 9(c)(l)(a) of the NLRA contemplates an em­ will be engaged) in the building and construction ployer declining to recognize a union and permits a la­ industry with a labor organization of which build­ bor organization to file a representation petition with the ing and construction employees are members (not NLRB. Section 9(c)(l)(a) provides: established, maintained, or assisted by any action defined in subsection (a) of this section as an un­ "(1) Whenever a petition shall have been filed, in accordance with such regulations as may be pre­ fair labor practice) because (1) the majority status of such labor organization has not been established scribed by the Board...the Board shall investigate under the provisions of section 159 of this title prior such petition and if it has reasonable cause to be­ to the making of such agreement, or ..." lieve that a question of representation affecting commerce exists shall provide for an appropriate Most unions representing employees in construction hearing upon due notice. Such hearing may be con­ have obtained "voluntary" lawful recognition pursuant ducted by an officer or employee of the regional of­ to 8(f) - without a secret ballot election or showing of an fice, who shall not make any recommendations with uncoerced majority. Project Labor Agreements base their respect thereto. If the Board finds upon the record of validity on section 8(f). such hearing that such a question of representation 5. §8(d),29 USC §158(d) describes the duty to bar­ exists, it shall direct an election by secret ballot and gain: "For the purposes of this section, to bargain shall certify the resu Its thereof." collectively is the performance of the mutual ob­ 4. Unlike other employers, a construction industry ligation of the employer and the representative of employer may voluntarily recognize a labor organization the employees to meet at reasonable times and con­ without an election or a showing that an uncoerced major­ fer in good faith with respect to wages, hours, and ity of employees want to be represented by a union. Sec­ other terms and conditions of employment, or the tion 8(f), 29 USC §158(f) provides: negotiation of an agreement or any question arising "It shall not be an unfair labor practice under sub­ there under, and the execution of a written contract sections (a) and (b) of this section for an employer incorporating any agreement reached if requested by engaged primarily in the building and construc­ either party, but such obligation does not compel tion industry to make an agreement covering em­ continued on page 40

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APRIL,2009 "BUY FROM THE ADVERTISERS IN CONSTRUCTION OUTLOOK" 39 Labor Issues continuedfrom page 39 tional Labor Relations Act (NLRA) to address three (3) primary concerns: either party to agree to a proposal or require the making ofa concession . .." (emphasis supplied) 1. Facilitating a means of recognition eliminating the employer option of a "secret ballot" election. Unions Under existing law an employer is not required to believe the current NLRB secret ballot election process is agree to any proposal so long as it acts in good faith in re­ not to their advantage because it takes too long and gives jecting a demand. EFCA will radically alter this employer management an unfair advantage in communicating its po­ right. As indicated below, in initial contract negotiations, a sition to employees prior to their casting a secret ballot. panel of arbitrators would be authorized by law to unilater­ ally impose a contract. 2. Adding harsher penalties for employers found to have unlawfully terminated employees for union activity In sum, these are the sections of the NLRA targeted during "organizing" campaigns. Unions opine they are by unions, by EFCA, to radically revise the NLRA. unsuccessful in organizing efforts because employers ter­ C. Why Organized Labor Supports EFCA minate employee organizers. These terminations leave the organizing effort leaderless and discourage their co-work­ American unions, like American employers, are fac­ ers from organizing. Unions complain the NLRB process ing a crisis. Unions now represent their lowest percentage is too drawn out, and even if the alleged discriminee pre­ of workers in the American workforce since the Great De­ vails, he or she ordinarily does not want reinstatement and pression, a drop from a high of 35% in the 1950s to a mere their termination lingers over other employees. In sum, 12% of today's workforce. This number includes a vast unions believe current penalties are too low to discourage amount of employees in the public sector. The economy employer misconduct. may wipe out the unionized American owned automobile 3. Even if the union is selected by a majority of em­ industry from Big Three production workers, to major ployees in a secret ballot election, the employer can slow unionized parts suppliers, to unionized dealerships. Orga­ the collective bargaining process indefinitely, even if en­ nized labor views EFCA as a legislative fix to their declin­ gaging in good faith bargaining, resulting in either disin­ ing membership and a potential hedge to maintain political terest by workers in the union, or no collective bargaining potency. agreement, or both. EFCA accomplishes this goal by amending the Na­ continued on page 41

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40 "BUY FROM THE ADVERTISERS IN CONSTRUCTION OUTLOOK" APRIL,2009 Labor Issues continued from page 40 of the NLRA, are entitled to reinstatement and back pay but may also receive liquidated damages up to two times D. How EFCA Changes Labor­ the amount of back pay. Management Relations 9. Any employer who willfully, repeatedly, and un­ lawfully terminates employees for engaging in concerted The Employee Free Choice Act provides: or union organizing activity, prior to obtaining the initial I. Upon obtaining a majority of signatures from em­ collective bargaining agreement, may be ordered to pay a ployees in an appropriate bargaining unit, presenting those penalty of $20,000 per violation. signatures to the National Labor Relations Board (NLRB) and having them validate those signatures, the NLRB will E. Conclusion: certify that union as the collective bargaining representa­ The Employee Free Choice Act may pass tive of employees in that unit. The secret ballot election is Congress. Ifso, American labor relations will eliminated upon a majority showing. (The Act does not specify the means and methods by which employee sig­ be radically changed. Because unions will natures will be verified or when those signatures become still be required to obtain evidence that a ma­ invalid.) As noted, a construction industry employer can jority of employees in an appropriate union voluntari Iy and lawfully recognize a union without a secret desire union representation, an employers' ballot election or majority status. However, under EFCA, best means of maintaining non-union status non-union construction industry employers must recog­ is to maintain good working conditions, show nize a union simply based on the majority card check. This is a radical change. respect towards your employees, be proactive, 2. Upon NLRB certification, bargaining must com­ train supervisors (and employees) regarding mence within 10 days unless the parties agree to an ex­ the NLRA, and maintain good communica­ tension. tion and labor relations. Maintaining non­ 3. If there is no contract within 90 days of bargain­ union status requires a commitment to posi­ ing, either party can notify the Federal Mediation and tive employee relations. Conciliation Service (FMCS), that there is an existing la­ bor "dispute", and request mediation. 4. Upon notification, the FMCS shall promptly communicate with each party and commence mediation to bring them to an agreement. 5. If after 30 days of mediation, no collective bargain­ ing agreement is obtained, the FMCS "should" refer the dispute to an arbitration board established by the FMCS. There is no provision in the act for how the arbitrators will be chosen or what qualifications are required. 6. An arbitration panel is empowered to impose a collective bargaining agreement upon the parties. This is Ready Mix Concrete known as interest arbitration. There is nothing in the act Quick Set Flowable Fill placing any limits upon the terms ofthe initial collective bargaining agreement. The employer has iost the right, Flowable Fill in good faith, to reject union demands in the first con­ Washed Sand tract negotiations! Washed Stone 7. The FMCS is empowered to impose this collective • Compactable Gravel bargaining agreement for up to 2 years. Not addressed by • Loam, Mulch EFCA is the almost universal practice that most construc­ tion collective bargaining agreements provide uniform wages, benefits and terms and conditions of employment A. GRAZIANO, INC. for each trade in a particular geographic area and a "most 71 Adams Street, Braintree, MA ~. favored nations" clause. What happens if an "arbitration Tel:I-800-462-9901 • panel" establishes lesser terms for an initial contract for a E-Mail: www.grazianoconcrete.com construction industry employer? 8. To further the goals of the Act, employee organiz­ SATURDAY DELIVERIES ers, found to have been unlawfully terminated in violation

APRIL,2009 "BUY FROM THE ADVERTISERS TN CONSTRUCTION OUTLOOK" 41