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The
healthcare field is particularly vulnerable to unionization because the work
performed by healthcare employees cannot be sent offshore, unlike more
traditional constituencies, such as manufacturing jobs. The political winds
of change are blowing and major changes regarding how employees select union
representation are coming and employers need to be planning for these
changes now.
President-elect Obama has promised he will sign into law the bill presently
pending in Congress that is known as the Employee Free Choice Act. Given the
overwhelming congressional victories by the Democratic party, which has by
and large supported the bill, we expect the Employee Free Choice Act to be
enacted relatively early in the President-elect’s administration.
The Employee Free Choice Act has the potential to alter the union-management
landscape more than perhaps any other labor relations legislation in the
last fifty years. Many believe the creatively entitled “Employee Free Choice
Act” (“EFCA”) will, in spite of its name, actually deprive employees of free
choice regarding union representation and function so as to intimidate
employers with increased penalties for certain labor law violations, if
enacted in its current form.
EFCA’s Features
The primary feature of the EFCA would require that employers recognize a
union when a majority of a company’s employees sign union authorization
cards in the presence of union organizers. Since Congress created The
National Labor Relations Board (“NLRB”), secret ballot elections have
ensured workers the ability to express their preferences in secret without
the threat of coercion.
The EFCA would also give unions the power to invoke arbitration to gain a
first contract, abandoning the current system of letting the parties settle
their differences through good faith collective-bargaining. If the EFCA is
passed, business owners could be forced to binding arbitration on “first
contracts.” If the parties cannot negotiate an agreement, either party could
refer the dispute to the Federal Mediation and Conciliation Service
(“FMCS”). The FMCS then may refer the parties to arbitration if the parties
do not reach an agreement within 30 days. The arbitration results would be
binding on the parties for 2 years.
Finally, the EFCA would increase penalties against employers for certain
labor law violations, requiring reimbursement at three times the amount of
wages lost by an employee and imposing civil fines of as much as $20,000 per
incident. Notably, the EFCA does not levy any new or harsher sanctions for
union misconduct.
Impact of Certifying Union Representation on Signing of Authorization
Cards
Authorization cards are inherently less reliable because, unlike secret
ballot elections, authorization cards are signed in the presence of a
pro-union employee or a union organizer. Requiring such a public rather than
a confidential decision about unionization lends itself to peer pressure,
harassment, coercion, and misrepresentation. Furthermore, unions can obtain
commitments from employees without the employer’s knowledge and thus gain
representative status before the employer has the opportunity to dispute the
necessity of unionization.
The EFCA also makes NLRB supervision unnecessary resulting in further losses
of protection for employers. In an NLRB supervised election, workers’ rights
must be posted by the employer three days prior to the election. With card
checks, workers rights are explained by a union organizer. NLRB elections
have observers selected by management and labor. With card checks, union
organizers control the actual cards.
EFCA’s Potential Impact on Employers
With secret ballots, unions win 60% of their elections. Industry insiders
predict that if the EFCA is passed in its present form, unions will gain
representation more than 80% of the time. The advantages to the unions of
having card checks are enormous, and it will mean that employers will be
fighting new battles on an uneven playing field.
It is not too strong to state that the EFCA, if passed in its present form,
will radically alter labor relations in this country and tip the balance
dramatically in favor of organized labor. Non-traditional union
constituencies are particularly at risk. The health care industry is a prime
example because the work performed by health care field cannot be exported
overseas like the traditional union constituency, manufacturing jobs. Unions
are already starting card signing campaigns. Much needs to be done by
employers to prepare for this new Act’s ramifications and employers should
not wait until the law is enacted to prepare.
If you have
any questions or desire additional information, please contact a member of
Phelps Dunbar’s health care team listed below. |
