Union-Free Employers Have a Lot to Fear in 2010

November 3, 2009

By: Raymond J. Pascucci

It has been one full year since President Obama’s historic election and we can all breath a collective sigh of relief that nobody in Washington is even talking about the Employee Free Choice Act, right? In addressing this question, I will invoke what I consider to be the greatest movie title of all time – Clint Eastwood’s 1966 epic spaghetti western, “The Good, the Bad and the Ugly.”

It is, of course, good news that the dreaded EFCA has not become law. To recap, the percentage of workers who are represented by labor unions in the United States has been declining for more than six decades from a peak of 34% in 1954 to just 12.4% in 2008. When government workers are taken out of the equation, unions now represent a mere 7.4% of the nation’s private sector workforce.

EFCA was designed to dramatically reverse this trend and restore organized labor to its glory days by amending the National Labor Relations Act in three critical ways: (1) replace secret ballot elections in union representation cases with card-check recognition; (2) require rapid agreement on an initial labor contract following unionization and impose binding arbitration if not settled within 90 days; and (3) ratchet up penalties and expand the use of injunctive relief for employer unfair labor practices.

Backed by tens of millions of dollars in political campaign contributions, endorsements and armies of volunteer workers from organized labor, President Obama was elected on a promise to sign EFCA into law upon passage by the Democratic controlled Congress. EFCA was expected to be a top priority for the new administration during its first year in office, and union-free employers began to brace themselves for the prospect of rapidly expanding unionization beginning as early as the summer of 2009. As we all know now, the Stimulus Bill, Health Care Reform, the war in Afghanistan, and the upcoming Cap and Trade debate have all taken precedence, pushing EFCA to the back burner. Moreover, the most controversial aspect of EFCA – card check – has reportedly been dropped because it lacks support from the 60 Senators needed to stop a Republican filibuster.

Now for the bad news, obvious though it may be. President Obama is not going anywhere for at least another 3 years. The one-party government in Washington will remain firmly in place at least through all of 2010 and most likely beyond. Organized labor has unprecedented influence in this White House and more clout in Congress than it has had in decades. President Obama’s appointees to fill the NLRB’s three vacant seats will undoubtedly be confirmed by the Senate in the upcoming year and begin to reverse a series of decisions under the Bush administration that were favorable to employers. The new Obama Board will lead an agency that is already filled with like-minded career bureaucrats.

Today’s top labor leaders know how to use the political process and they know how to run campaigns. They are ideologically committed and aggressive. Frustration over labor’s downward spiral has been building ever since President Reagan’s decision to fire striking air traffic controllers back in 1980. The new President of the AFL-CIO, Richard Trumpka, and key leaders within the rival labor coalition Change To Win (CTW), most notably SEIU’s Andy Stern, are powerful advocates for a resurgent labor movement.

And now for the ugly news. 2010 will be a watershed year for organized labor. Even without card check, the playing field will almost certainly be tilted dramatically in favor of union organizers. Under longstanding NLRB guidelines, when a labor organization files a petition to represent a group of non-union employees, an election must normally be held within 42 days. This is barely enough time to run an effective information campaign countering the union’s message which can be very attractive to the uneducated employee. When the EFCA debate does inevitably reach the front burner in the months ahead, at a minimum unions can expect to win stiffer penalties for employer unfair labor practices and fast-track elections, perhaps within 20 days, in lieu of card check. As a practical matter, such fast-track elections will be nearly as powerful a tool for union organizers as card check would be. Unless the employer was aware of the organizing activity well before the petition was filed and already had its counter campaign well underway, there will simply not be enough time to convince a majority of employees that unionization will not be in their best interests. Instead of winning slightly more than half of all representation elections, union win rates will likely surge to 70-80% or higher. Along with all the other cards that will soon be stacked in their favor, this will drive the national unionization rate substantially higher in the years ahead.