8/2/2019 Critical Workplace

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Employer Advocate Winter 2 0 0 9

Responding toOrganized Labors Assaulton Workplace Democracy.

W o r k p l a c e

In NLRB vs. Gissel Packing Co., Inc., 395 U.S. 575(1969), the Court maintained that secret electionsare generally the most satisfactory indeed thepreferred method of ascertaining whether a

union has majority support.The EFCA also would transform the process

by which employers and unions negotiate initialcollective bargaining agreements under theNational Labor Relations Act. Under this scheme,if the parties fail to reach agreement within 90days, either party may request mediation bythe Federal Mediation and Conciliation Service(FMCS). If the parties still cannot reach agree-ment after 30 days of mediation, the FMCS wouldrefer the dispute to an arbitration panel. The arbi-tration panel would have the ultimate power andauthority to decide and impose the terms of theinitial two-year collective bargaining agreementeven if it is unacceptable to the employer and theemployees.

In light of the potential impact of the EFCA,employers need to focus signicant aention ontraditional labor issues more so than at anyother time in the last 50 years. In light of themore aggressive labor movement, unpreparedemployers will nd themselves increasinglymore vulnerable to union organizing if they fail

to take action.Because most union organizing is issue-driven, it is critical that employers understandtheir employees specic issues and concerns anddevelop eective strategies to resolve them. Man-agement at all levels must have a commitment topositive employee relations. An employer shouldestablish an employee relations model built upon(1) recognizing individual achievement and meritand (2) responding to employee issues and con-cerns before employees look outside the companyfor resolution of their concerns.

The national labor and employment law rmFord & Harrison LLP has prepared a CriticalAnalysis of EFCA, including a Ten-Point Employ-er Strategic Action Plan for responding to EFCA.This document is available on AIFs website atwww.aif.com.

William R. Radford is Managing Partner, Ford &

Harrison LLP (e-mail: bradford@fordharrison.com)

(Web: www.fordharrison.com)

Eliminating the

secret-ballot

election would

undermine thefundamental

principles of wo

place democrac

y in the face of

pronouncement

made by the U.S

Supreme Court.

By William R. Radford

Bill Radford has practiced traditional labor andemployment law solely on behalf of management formore than 35 years.

The power, prestige and popularity of thelabor movement has suered greatly in thelast few decades as the number of employ-

ees represented by labor unions in the UnitedStates has steadily declined since the early 1950s.Since the mid-1970s, union membership hassteadily declined from a high of 34.8% to a 2007level of only 7.3 percent.

For years, organized labor has searched forways to reverse this precipitous decline in unionmembership. They believe they nally have

found a magic formula in the deceptivelynamed Employee Free Choice Act (EFCA),which represents a radical change to federallabor law in order to make it easier for unions toorganize employees.

Through the EFCA, organized labor wouldvirtually eliminate the secret-ballot electionas the primary means to determine whetheremployees want union representation. Under theEFCA, a union would be established for a workgroup without any election when it succeeded insecuring a simple majority of employee signa-

tures on authorization cards designating theunion as the collective bargaining representative.It is uniformly accepted that this would achieveBig Labors goal of signicantly increasing unionmembership in every industry and in all sectorsof the economy.

Eliminating the secret-ballot election wouldundermine the fundamental principles ofworkplace democracy and y in the face of pro-nouncements made by the U.S. Supreme Court.

A Critical Analysis

of the EmployeeFree Choice Act(EFCA)