For the past 37 years I have earned my living as a professional labor lawyer. During that time, I have worked for government, unions, and for the past 30 years, management exclusively. My personal specialty during that entire time has been the building service industry.

In this monthly column it is not my intention to bombard you with scholarly dissertations on labor and employment law. There are many other fine professional journals that do just that. Rather, it is my hope to share with you practical, common-sense information that may make your life and your business easier.

Let us begin.

The basic federal statute that governs relations between employers and unions is known as the National Labor Relations Act. It was enacted in 1936, during the depths of the Great Recession as part of President Franklin Roosevelt’s “New Deal” program. The theory behind the law was that empowering working people to organize themselves into unions and to bargain collectively with their employers over wages, hours and other terms and conditions of employment would help the national economy to recover its strength and vigor.

The National Labor Relations Act permits workers to chose — or not to chose — union representation by means of government-run secret ballot elections, protects them from employer retaliation and authorizes them to negotiate collective bargaining agreements. A federal agency, the National Labor Relations Board (“NLRB”), was established to administer the law.

Well how have things worked out?

It is now 2012. Although showing some signs of recovery, the economy is still mired in the greatest economic slowdown since the Great Depression. The percentage of American workers represented by labor unions now hovers at an all-time low of 7 percent, down from more than 30 percent in the 1950s. Despite decades of courting politicians and launching well-publicized organizing campaigns (such as, for example, the “Justice for Janitors” campaign in our industry), the labor movement has been unable to make that number grow. In fact, union representation continues to decline and is now concentrated in just a few industries such as automotive manufacturing, hospitals, transportation and building service.

The leadership of organized labor, desperate to reverse its decline, decided to cash in their political chips and turn to legislation, rather than organization, as the solution. The result was a bill introduced into Congress in 2009 that would have substituted union card-counts for secret ballot elections and would have mandated labor contracts created by arbitrators instead of collective bargaining. With a delightful sense of irony, the backers of this legislation christened it the “Employee Free Choice Act” or “EFCA” for short.

Drafted by union lawyers in Washington, EFCA proved to be too radical for Congress to swallow. Despite lots of publicity and political posturing, the bill never made it out of committee. Thus, EFCA died and remains dead. Or does it?

Having failed on the organizing and legislative fronts, the Labor movement turned to a third alternative: the NLRB. And here’s where they may succeed.

As a federal agency, the NLRB was always a more-or-less-neutral referee of the legal disputes between management and labor. Since 2008, however, that role has changed. The NLRB has now positioned itself as the champion of the union movement. Without a word of authorization from Congress and without the approval of the American voter, the NLRB has tried to dramatically shift the odds in favor of organized labor. How has it tried to accomplish this?

First, for the only time in American history, the NLRB is requiring all employers — both union and non-union — to prominently display an official government poster advising workers of their right to support and join unions. This proposed regulation is scheduled to go into effect April 30, 2012. To view a copy, go to www.nlrb.gov/poster.

Employers are objecting. They argue that the requirement of an official poster suggests that the government is endorsing or encouraging workers to join unions. A court challenge is pending.

Second, the NLRB is altering its administrative procedures to reduce the amount of time that elapses between the date that a petition for an election is filed until the date that the election is actually held from an average of seven weeks to two weeks. The result would be what some labor professionals term “ambush elections.” Like the posting requirement, this change is scheduled to go into effect April 30, 2012.

Employer groups argue that expediting elections deprives management of its most effective weapon: time. Typically when an employer learns that an election petition has been filed, it uses the hiatus to educate workers about the negative aspects of union representation: dues and assessments, strikes, labor corruption and loss of jobs. Historically, these messages are so compelling that a large percentage of employers who oppose union organizing campaigns end up winning their elections.

Faced with these changes, how is an employer to shift the odds back in its favor? That, dear reader, will be the subject of my next column appearing in February.

Perry Heidecker is senior counsel for Milman Labuda Law Group PLLC, Lake Success, N.Y. The firm is a full-service Employment Law practice focused on counseling, preventive advice and training, policy and procedure design, representation before administrative agencies, litigation, and appeals.




POSTED ON: 1/17/2012