Lane W. Imberman, Imberman and DeForest, Inc. (March 2011)
Executives across the nation are waking up to a potentially damaging fact: Although unions lost their Congressional battle for the Employee Free Choice Act - the "card-check" unionization law - they will make organizing easier with Craig Becker's appointment to the National Labor Relations Board (NLRB).
President Obama awarded Becker an interim appointment to the NLRB in February 2010, after it became clear that the Senate would not approve him. During debates, Senator Ben Nelson (D-Neb.) said, "Mr. Becker's previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB."
The NLRB is the quasi-judicial agency that administers the Wagner Act of 1935. The act created a system of industrial democracy and governs labor relations. New York Senator Robert Wagner, the law's sponsor, said secret ballot elections were the linchpin of American democracy and would work in industrial settings, too. The Wagner Act gives employees the right to vote for union representation.
Commonly called the National Labor Relations Act, the law is administered by NLRB members. Appointed by the President and confirmed by the Senate, they decide the rules governing union and management behavior and election conduct. Over the years, the NLRB has tried to balance the often-conflicting interests of unions, employers, and employees.
Craig Becker Controversy
Before his appointment to the NLRB, Becker was the associate general counsel for the Service Employees International Union (SEIU) and the AFL-CIO, the umbrella organization of U.S. unions. Before that, Becker taught at UCLA's Law School from 1989 to 1994, and has written extensively for several law reviews, particularly an important article, "Democracy in the Workplace: Union Representation Elections and Federal Labor Law," published in the 1993 Minnesota Law Review.
The article entailed that:
• Employers should have no legally cognizable interest in any representation election of their employees.
• In any representation election, employers should have no right to campaign against unions or question voter eligibility, union campaign conduct, or unit determination. "Only the employee constituency and their potential union representative should be heard," Becker wrote.
• Employees should not be permitted to choose not to have a union as their monopoly-bargaining agent. Their only choice should be which one.
• Employers should have no legally sanctioned role in union representation elections.
Why Unions Want the Law Changed
Unions want to ease organizing rules because membership has declined so sharply. In the 1950s, unions represented about 35 percent of private industry employees. Today, private sector unionization has dropped to 7.2 percent. This decline has occurred for several reasons:
• Many labor abuses of the 1930s - age, sex, and racial discrimination - are now outlawed by federal and state laws.
• The growing sophistication of human resources, including performance-based compensation systems like Gainsharing, have built employee-management bonds. The desire to earn rewards for improved productivity has replaced worker interest in unionization.
• The decline of the heavy industries in which unionization originally flourished - steel, auto, and heavy equipment - mean unionization candidates have dwindled.
• Employees are increasingly aware of globalization. They know they are no longer competing against a foundry, apparel plant, or paper mill next door, but with a business overseas. This has diminished unions' bargaining leverage.
• Faced with international competition, employers now try harder to stay union-free and maintain the flexibility to compete in the global market.
Free Choice Act Failure
The Employee Free Choice Act (EFCA) would have allowed unions to organize employees by merely obtaining "authorization cards" from a majority of a company's workers with no secret ballot election. Although the House of Representatives passed EFCA, the Democratic Senate offered some compromises due to stiff opposition. These called for "quickie" elections to be held within five to 10 days after filing a petition.
Businesses objected strongly. They said quick elections would prevent them from presenting their cases to employees. They wanted the opportunity to notify employees of the high cost of negotiating labor contracts, restrictive work rules that result in wasteful practices, and the rigid union contracts that block timely reactions to changing market conditions. These factors hurt all employers - and the job security of their employees.
Since Becker's appointment, the NLRB has become more pro-union. The NLRB is currently:
• Revisiting the 2007 Dana case, which requires a secret ballot election if employees petition for it, even if their employers have agreed to card-check unionization without a vote. Overturning decisions like Dana makes union organizers' jobs easier.
• Proposing that employers be required to post one-sided notices informing employees of their right to unionize. Failing to post notices will count against employers in any subsequent proceedings before the NLRB.
• Considering permitting union organizers to campaign on employer property.
• Allowing unions to continue "salting" the companies in which they wish to organize with disruptive new hires, then filing unfair labor charges when the disruptive workers are fired.
• Considering how to speed up elections and whether the law requires secret ballot elections - in short, card-check unionization.
Avoid Problems and Expenses
Most executives understand that treating employees so they don't want to unionize is the best way to avoid these hassles. They know that money is not the real reason their workers seek unionization. Rather, employees want unions because they say they are not being treated fairly, openly, and honestly, without partiality or favoritism.
Some executives are shocked when they receive an NLRB letter stating that a union has filed an election petition for their workers. These executives have misread employee attitudes because they have not taken the time to obtain an expert assessment of their plant floor sentiments.
To avoid such unpleasant surprises, first test the temperature on the plant floor. This cannot be done simply with a paper-and-pencil audit. Those surveys rarely uncover the nuances of employees' thoughts.
The best way to understand employee attitudes is through face-to-face interviews with expert, outside interviewers. Workers will speak more openly to an outsider than to management for fear of retribution. And the ability to discern what employees really mean by what they say is critical and requires the experience and knowledge of an industry's practices.
Next, eliminate irritants to employee morale. This often requires supervisory training tailored to the problems of a particular company. Canned training purchased online is inexpensive, but typically ineffective.
The Great Recession has affected nearly every business across the world. Since consumers remain hesitant to spend, only the most efficient companies with the best employee morale, productivity, and lowest costs will survive.