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By Dan McCue
A bill
passed by the
U.S. House of Representatives and soon to be considered in the
Senate would radically change the rules pertaining to union activity
in the workplace and could open South Carolina to union activity like
never seen before, a prominent labor attorney in Columbia said.
The
Employee Free Choice Act, which passed in the House in a 214-185
vote Feb. 28, would be a “radical change” in the relationship between
employer and employee, said William Floyd, an attorney with
Nexsen Pruet LLC in Columbia.
Not only would it make it much easier for employees to form a union, but
it would also stiffen penalties against employers found to discriminate
against workers based on their union activities.
The new penalties promulgated in the bill authored by Rep. George
Miller, D-Calif., include requiring employers to pay treble back pay to
workers found to have been illegally fired as a result of their union
activity and fines up to $25,000 per violation.
The EFCA also provides for the arbitration of first contracts if the
employer and union fail to reach agreement after a year of bargaining.
Miller wrote and sponsored the legislation because he believes that many
employers thwart their employees’ right to organize as detailed in the
National Labor Relations Act, he said.
But Nexsen Pruet attorney Floyd disagreed with that assertion.
“This bill is an outgrowth of organized labor’s decline nationally,” he
said. “The unions have lost members and their impact in the workplace
has been substantially diminished. That’s why, after 70-some-odd years
of stability in the system under the NLRA, the AFL-CIO and others are
making passage of the EFCA their number one priority.
“Labor law has a rich historical foundation in this country going back
to the 1930s; this bill would radically change the table management and
labor gather around.”
South Carolina is currently tied with North Carolina with the lowest
proportion of union members in the nation. In 2006, of the 1.8 million
workers in South Carolina, only 3.3% were members of unions, according
to the AFL-CIO.
Molly Hughes, an attorney with Nexsen Pruet’s Charleston office,
contends the act is patently unfair because under it, if a majority of
workers in a workplace sign cards authorizing a union, the business
would be unionized.
This majority sign-up process is already permitted under the NLRA, but
only if the employer allows it. Today it’s far more common for them to
insist that workers adhere to the time-honored provisions of the act.
Under the current process at least 30% of a company’s workers must sign
cards indicating that want to have a union, which then gives them the
right to petition the
National Labor Relations Board for an election by secret ballot.
“That’s one reason I think the name of this bill is a misnomer, because
in taking away the employee’s privacy it could subject the employee to
pressure from the union,” Hughes said.
Floyd is also concerned about the EFCA’s impact on collective
bargaining.
“Right now, so long as you’re bargaining in good faith, you can take the
time you need to resolve issues,” he explained. “This bill compresses
the bargaining schedule, taking it from the months and years it might
take to resolve a complex issue to merely days or months, after which
time the matter would have to go through an arbitration panel.
“In effect what you are creating is a situation where the federal
government will be deciding very important labor management issues on
the local level,” Floyd said.
Since the legislation passed in the House Floyd has urged business
owners to contact their senators and the White House to express their
opposition to the measure, he said.
“Beyond that I think employers need to start anticipating what they’ll
do if this bill becomes law,” he said.
One thing Hughes has been telling employers is they need to re-emphasize
training of the supervisors in the management team in how to deal with
union issues. They should also train all employees in what their rights
are under the EFCA, the NLRA and applicable state laws.
When it comes to unionizing, all 50 states have laws that generally give
employers a right to control their property. What that means is that
they have a say in regard to what their employees do while on the clock.
“What these laws say, generally, is that an employer can regulate the
time and place of distribution of union-related material, but they can’t
outright prohibit it,” Hughes said.
The catch is that employers have to make sure they’re not applying one
set of rules to union activity and another set to other activities, like
soliciting for a charitable cause.
“That’s why we always remind our clients that if they’re going to adopt
a solicitation distribution policy, it has to be even-handed, applying
to union activity, charity-related activity, everything,” she said.
Thirteen Republicans joined 228 Democrats in approving the EFCA in the
House. The Senate version of the bill, sponsored by Sen. Ted Kennedy,
D-Mass., is expected to face far more opposition.
And President Bush has already vowed to veto the bill if it passes
there, only the second veto he’s issued during his administration.
“The question is whether there are enough votes in Congress to override
that veto,” said Floyd, who went on to suggest that’s a real fear for
employers.
“The threat this posses to South Carolina is enormous in my opinion,” he
said. “Because we’ve had such a long history of having the least union
activity in the nation, we’re ripe with new members for these
organizations.
“I expect unions would use this new law to establish a presence in South
Carolina like never before.” |
