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When Congress finally completed its Lame Duck Session in 2010, pro-business government relations professionals breathed a sigh of relief – the “Employee Free Choice Act” – better known as “Card Check” was dead. Again.
Card Check proposes replacing private-ballot elections with public elections, letting unions organize a workplace if a simple majority of workers sign a card. The bill also requires parties to settle disputes via binding mandatory arbitration if they can’t come to an agreement. Generally, the bill grants greater access to the workforce for unions and makes unionizing a public, almost irreversible process. Its passage has been a key legislative priority for unions and enemy #1 for businesses.
Why is Card Check so threatening to franchisees?
First, and most importantly, it would take away your employees' rights to a private election free from intimidation. Union workers, colleagues and employers would have the right to witness the employee's selection. Second, it would eliminate the safeguards provided by the National Labor Relations Board ("NLRB") to ensure fair, fraud-free elections. Also, if more than 50% of your employees signed a card in favor of union representation, it would be almost impossible to reverse - regardless of whether those who voted are still employed by you. Finally, if you and the respective union don't have an enforceable contract within 120 days, the bill would require a government-mandated arbitrator who may have no experience in business issues to force a contract - regardless of whether EITHER side agrees to that contract.
While the bill passed the U.S. House of Representatives in 2007, it could not generate the 60 votes needed in the Senate. Since that time, supporters of the bill – including the White House – have tried to find other avenues to appeal to unions.
First, President Obama appointed Craig Becker, former legal counsel for SEIU and AFL-CIO, to the NLRB - the federal agency which oversees the National Labor Relations Act (including union and employer issues) primarily through quasi-judicial hearings. In addition to his clear ties with organized labor, Mr. Becker was never approved by the Senate, but rather appointed by President Obama while Congress was on recess.
On December 22nd, the NLRB published a Notice of Proposed Rulemaking (NPRM), which would require employers subject to the National Labor Relations Act (NLRA) to post a notice in the workplace informing employees of their rights under the NLRA or face a number of sanctions. As you may recall, President Obama issued an Executive Order in 2009 that required government contractors display such a poster. Click here to view the (NPRM).
Additionally, the NLRB announced a new enforcement policy against employers accused of unlawful conduct during union organizing campaigns. The announcement instructs regional NLRB attorneys to seek the specific remedies in those situations - including increased union access to employees. The memo also states that in cases where an employers' conduct had a particularly severe impact, the regional attorney may look to pursue additional remedies, including: "granting a union access to non-work areas during employees’ non-work time; giving a union notice of, and equal time and facilities for the union to respond to, any address made by the company regarding the issue of representation; and affording the union the right to deliver a speech to employees at an appropriate time prior to any Board election."
Finally, DOL released its semi-annual regulatory agenda which includes a proposal to issue a proposed rule in June 2011 revising reporting requirements for costs related to employer communications to employees during organizing drives. Under current law, employers and consultants are not required to report activities classified as advice. DOL has said it intends to narrow the advice exemption.
So don’t breathe a sigh of relief yet – while Card Check may be dead in Congress for now, greater access to your employees via regulation and increased penalties for non-compliance is right around the corner.
The Coalition of Franchisee Associations is a member of the Coalition for A Democratic Workplace, whose mission is to protect the right to a federally supervised private ballot when workers are deciding whether or not to join a union.