The potential hike in the federal minimum wage rate may not be the most significant legislation considered by the Democrat-controlled Congress this year.
The potential hike in the federal minimum wage rate may not be the most significant legislation considered by the Democrat-controlled Congress this year. While the proposed minimum wage increase (an increase in stages over a two-year period, resulting in a $7.25 per hour minimum wage) will likely impact many employers, especially small businesses, employers should be more concerned about the so-called “Employee Free Choice Act,” which was introduced in 2005.
This legislation would require the National Labor Relations Board (NLRB) to certify a union as the representative of employees whenever the NLRB finds that a majority of a company's employees in an appropriate bargaining unit has signed union authorization cards. The legislation would eliminate the NLRB’s secret ballot elections process, often referred to as the NLRB’s crown jewel, which ensures workers can express their opinion regarding union representation without coercion by either party.
This legislation is a priority for the AFL-CIO and the Change to Win coalition, as well as other labor unions, who increasingly have used card checks to obtain union representation. In fact, 70% to 80% of employees organized every year come to be represented by unions through methods other than traditional NLRB conducted elections, compared to just 5% twenty years ago. Additionally, unions win approximately 60% of traditional secret ballot elections; however, unions win approximately 80% of the time when the card check process is used.
Labor activists have indicated they believe they can get the Act through Congress but acknowledge that it might not be signed into law under the current administration. However, according to Karen Ackerman, political director of the AFL-CIO, "We will keep mobilizing and organizing until it is signed into law." See U.S. Labor Movement Hopes to Rise Again, CBSNews.com, Washington, Dec. 8, 2006, available at http://www.cbsnews.com/stories/2006/12/08/politics/printable2240132.shtml.
Specifically, the Employee Free Choice Act:
1. Provides for certification of a union as the bargaining representative if the NLRB finds that a majority of employees in an appropriate bargaining unit have signed union authorization cards, as long as the employees are not currently represented by a union;
2. Requires mandatory mediation and arbitration if an initial collective bargaining agreement is not reached within a certain period of time;
3. Gives priority to investigations of unfair labor practices that occur while employees are seeking representation or during the period after a union is recognized until the first collective bargaining agreement is entered into;
4. Provides for back pay and up to 2 times that amount in liquidated damages if the NLRB finds that an employer has discriminated against an employee in violation of § 8(a)(3) while employees are seeking representation or during the period after a union is recognized until the first collective bargaining agreement is entered into; and
5. Provides for a civil penalty not to exceed $20,000 per violation against any employer “who willfully or repeatedly commits any unfair labor practice” under §§ 8(a)(1) or (a)(3) while employees are seeking representation or during the period after a union is recognized until a first collective bargaining agreement is entered into. This penalty is in addition to any make-whole remedies described above.
Clearly, this legislation should be of grave concern to employers. Among other things, it is obvious that employers will not be able to resist union organizing through traditional means. Ford & Harrison LLP and F&H Solutions Group have developed a two-part strategy for our clients in response to labor’s bold agenda.
First, experienced trainers will educate management about labor’s newest organizing tactics, with the emphasis on card signing. The training session includes a four-hour session for supervisors and managers and a one-hour executive session for top management.
Second, labor consultants with F&H Solutions Group will conduct a comprehensive confidential employee survey. The survey includes:
a pen and paper questionnaire,
follow-up interviews with employees and managers, and
a detailed analysis of employee attitudes and vulnerability to card signing.
If you are concerned about your company's potential vulnerability to union organizing, consider taking the brief assessment developed by F&H Solutions Group, which is available at: http://www.fhsolutionsgroup.com/.
The assessment consists of twelve questions directed at many of the issues employers face today. The assessment includes a scoring guide that enables you to evaluate your potential vulnerability to organizing campaigns and determine whether you need to take steps today to protect your company.
For more information or to schedule a training program, please contact the Ford & Harrison attorney or F&H Solutions Group consultant with whom you usually work.