Unions stand to gain from proposed legislation

No more secret ballot?
It’s been a long time since labor legislation has struck such fear in the nation’s employers and generated such glee among labor groups.

What exactly has everyone fired up?

Here are the two most significant components of the bill:

1. Bypassing the secret ballot. Under current labor laws, if 30 percent of employees sign cards asking to be represented by a union, the organizing group can file a petition to hold a secret ballot vote with the NLRB.

Under the new proposal, unions could bypass a vote if they’re able to get more than 50 percent of the union cards signed.

This is one of the major sticking points for business advocates.

The law as it stands now, says Todd Steenson, an attorney for Holland & Knight, protects employees and employers by allowing an “accurate determination of how employees feel through a secret ballot election.”

Employees sign union cards for a variety of reasons, adds Mike Asensio, an attorney for Baker Hostetler, a management labor and employment law firm. “They are badgered by people to sign, or it’s an emotional reaction to a circumstance and not knowing what they’re getting themselves into.”

When a union is trying to organize a workplace, he says, the organizers have unilateral discussions with workers to convince them to sign cards. Often, employers only learn an organizing effort is under way when a petition is filed to hold a vote.

“That’s when the employer tells the other side of the story,” he says, so it can convince workers not to vote for a union.

Employers also argue that eliminating the secret ballot takes away employees' privacy.

Jane Lauer Barker, an attorney with Pitta & Dreier who represents workers, says the argument for keeping secret ballot elections “is a red herring.”

When workers want to organize, she says, union representatives typically know who supports the union and who doesn’t. “It’s not as if these votes are a great unmasking of who the supporters are,” she adds.

Employers want to have time to hold captive audiences with employees and to hire a “union-busting firm to scare people," says SEIU's Burger. “Is that fair to workers?”

2. Speeding up the first contract. Even after an election is held and workers vote for union representation, the road to having a voice in the workplace has only just begun.

Negotiations for the first contract can drag on for months or even years, and sometimes a contract is never agreed upon at all.

Without a contract, union workers don’t get any guarantees about working conditions, wages, seniority or other issues.

The act would impose, for the first time, limits on how long negotiations for that first contract could go on.

Under the bill, if an agreement isn’t reached within 120 days, the issue is referred to an independent arbitrator for mediation. The arbitrator then rules on the contract, which would be imposed in the workplace for two years. 

This piece of the legislation is good news for labor advocates like Pitta & Dreier’s Lauer Barker.

“I’m involved in a case right now where workers in the hotel industry have been fighting for more than four years to get a first contract,” she explains. “In this case, the employer does not want to provide health care to all workers and wants workers who want healthcare to contribute a larger portion of their wages. Their wages are very low compared to the industry wage.”

She believes the law would curtail what she sees as employers who bargain in bad faith.

On the flip side, Holland & Knight’s Steenson says 120 days just isn’t enough time to hammer out something as complicated as a first union contract from scratch. Arbitrators are not experts in writing labor contracts, he adds. They’re experts in interpreting them.

The act would also beef up penalties employers face when they violate an employee’s organizing rights.

Under the bill, an employer could be fined up to $20,000 per violation for interfering with a worker’s rights during the organizing drive or during negotiations for that first contract. The bill also would increase the amount of money a worker receives in back pay if fired due to union efforts.

Under existing laws, an employer is merely required to reinstate an employee and/or to put an end to the harassment.

Clearly, the act will dramatically change existing labor laws if it passes.

Gary Chaison, author of “Unions in America” and a professor of industrial relations at Clark University’s Graduate School of Management in Worcester, Mass., believes labor law reforms are needed but is not sure throwing out the election process is the best idea. “But there is reason to clean it up,” he says, adding that even stiffer penalties should exist for employers who try to derail an employee’s right to organize.

The bill was passed by the House in 2007 but stalled in the Senate. However, those on both sides of the issue expect the act to be one of the first issues Congress addresses after a new president takes office.

“I think the next president, if Republican, will veto it, and if Democrat, will sign it,” Chaison says.

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