Major Change in Unionization Rules —Fiorenza

A GENERATION ago, production in the printing and related industries was dominated by unionized work groups defined by craft and trade. Highly skilled typesetters physically laid out text; quality printing was dependent on a blend of competent machine operation and artistry; and post-production finishing was labor-intensive and time consuming. Trade unions flourished along these and other craft lines, and largely defined the work environment across the industry.

In the midst of technological and economic change over the past 25 years or so, union membership within the industry, and in general, has steadily declined. In 1983, for example, 20 percent of all private sector workers belonged to labor unions; in 2006, less than 8 percent were union members. The reasons for the decline are hotly debated and range from plant closures and layoffs, technological change, outsourcing, increased competition, union decertification, to the failure of unions to effectively recruit new members. Whatever the reasons, the impact of the decline is clear. Unions are experiencing a loss of political clout, a loss of relevance and an imminent economic threat to what have become entrenched social institutions.

All of that could change soon.

Since the National Labor Relations Act (NLRA) was initially passed in the 1930s, the fundamental premise of federal labor law has been that employees can choose to belong­—or refrain from belonging to—labor unions based on secret ballot elections. Moreover, these elections are held only after the union and the employer have an opportunity to freely communicate their views concerning unionization to the affected employee group. In other words, employees do not vote until they have had heard both sides of the story.

Today, a dramatic change to this fundamental premise is in the offing, and every print manager and employee owe it to themselves to understand this potential change and the impact it may have on their work lives.

Organizing, Bargaining

In February 2007, a bipartisan coalition of Congressional members introduced a bill that would dramatically change the NLRA with respect to both union organizing and bargaining over initial collective bargaining agreements. The bill, entitled “The Employee Free Choice Act” (EFCA), is expected to pass both Houses of Congress; however, President Bush has promised to veto the legislation. Nevertheless, the AFL-CIO and “Change to Win” Website are strongly advocating for the passage of this law on their Websites, e-mails, newspaper ads and overall lobbying efforts. It is believed that even if President Bush vetoes the legislation, it will likely be reintroduced following the election of a new president in 2008.

The EFCA essentially makes the following five changes to the NLRA:

1) The union can be certified as the bargaining representative of a company’s employees without a campaign or secret ballot vote. Specifically, the bill would allow unions to simply submit “authorization cards” from a majority of employees (within a proposed bargaining unit) to become certified. In other words, if a majority of the employees in the unit sign authorization cards, the union would automatically represent them without any campaign or vote, i.e., without the employees ever hearing the employer’s side of the story.

As mentioned above, the NLRA currently does not require an employer to recognize a union unless the union receives support by a majority of employees who vote in a secret ballot election. Such an election is typically conducted by the National Labor Relations Board (NLRB) after a 42-day campaign period. During that campaign period, the employer has an opportunity to provide employees with information about union representation, so that employees can make an informed decision in the secret ballot vote. The EFCA would essentially do away with this campaign period.

2) Once the union is certified, the EFCA would require the employer and union to reach agreement on their first contract within 90 days. If the parties cannot reach agreement during that time, either party can request assistance from the Federal Mediation and Conciliation Service. If that assistance does not result in a contract within a month, the matter would be referred to binding arbitration. The results of the arbitration would create the parties’ first collective bargaining and would be binding for a period of two years.

Under the current law, the content of the parties’ collective bargaining agreement is left entirely to the bargaining process. There is no obligation on the part of the employer to accept union proposals, nor is there a requirement on the part of the union to accept employer proposals. All the law requires is that the parties bargain in “good faith.” The EFCA would result in arbitrated labor contracts that will most likely be much more favorable to unions.

3) Employers may be fined up to $20,000 per violation for willfully or repeatedly violating employees’ rights in either a union organizing campaign or in some way related to the bargaining of the first contract.

4) If it is found that an employer unlawfully discriminated against an employee in relation to the union organizing campaign or the negotiations over the first contract, the employee would be entitled to damages in the amount of triple his/her backpay.

5) The bill would permit the NLRB to enjoin an employer under circumstances where there is “a reason to believe” that the employer has discharged, threatened to discharge, or engaged in conduct that significantly interfered with employee rights during an organizing campaign or first contract negotiations.

One-sided Perspective

The most cursory review of the changes proposed by the EFCA reveal that its architects had an extremely one-sided perspective on unionization in today’s workplace. Groups supporting the legislation suggest that the reason union membership is down in our society is simply because employers are somehow improperly squelching union organizing efforts. For example, the “Change to Win” Website recently claimed, “…a majority of workers can sign up for a union, but the company can veto that decision and demand an election. This allows the company to fire or harass workers, and threaten that it will close the workplace, in order to coerce workers into voting against a union.”

But to say that a secret ballot vote on whether to become a union member is somehow tantamount to a “veto” of such a decision makes no sense. In fact, if the EFCA becomes law, employees will be forced to “choose” to become union members by openly signing authorization cards. Such a system seems much more prone to abuse than the current one, which allows workers to vote their conscience in the security of a secret ballot voting booth.

Moreover, all of the “coercive” tactics often attributed to employers are all illegal under the current law, and aggressively guarded against by the NLRB. For example, under current law, if any employer were to “fire or harass workers, [or] threaten [to] close the workplace, in order to coerce workers into voting against a union,” the NLRB could, at a minimum, nullify any such vote, and either require a new secret ballot or automatically install the union at the employer’s worksite.

The fact is: Times have changed. Our society has changed. Our economy has changed. Our technology has changed. All of these factors have played a role in the decline of union membership in today’s workplace. The EFCA is an attempt to change the “rules of engagement” that have existed for 70 years to artificially tip the balance of power in favor of unions.

How much of a “free choice” is that? PI

—NICHOLAS FIORENZA

About the Author
Nicholas J. Fiorenza is managing partner of the employment law firm of Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., and longtime association counsel to the Printing and Imaging Association of New York State and its members. He is also president of Delacroix Consulting Group, the human resources consulting component of the law firm. For more information, visit www.ferrarafirm.com.