Virginia Lawyers Weekly

The election of Barack Obama promises to bring change to Washington, D.C., but the question most employment lawyers are asking these days is, “Who will benefit most from this change?”

The answer to this question is simple – unions.

Several new measures likely to be passed in his administration are designed to reverse the decline of unions and force more employees into the labor relations model first created by Congress by the National Labor Relations Act of 1935. Perhaps the most significant change to the current labor law sought by unions is that unions will be able to represent a workplace without a secret ballot election but merely by presenting evidence that a majority of employees have signed a union authorization card.

Under current labor law, an employer may voluntarily recognize a union as employees’ bargaining agent if the union presents evidence that a majority of employees have signed union authorization cards. Nevertheless, employers need not do so, and typically when a union is conducting an organizing drive a secret ballot election is held, which permits the union and the employer to present to employees the pros and cons of union representation. (Such an election can be demanded by the union with evidence that 30 percent or more of employees support the union.)

The Employee Free Choice Act (EFCA), sponsored in the United States Senate by President-elect Obama, would require the National Labor Relations Board to certify a union as employees’ collective bargaining representative if the union presents evidence that a majority of employees have signed union authorization cards. This can occur without the employer’s ever knowing that an organizing drive was under way.

This change alone, however, does not account for the drastic sea change that could result from the EFCA. The EFCA actually goes further than any U.S. labor law has ever attempted by imposing bargaining duties upon the employer that must result in a collective bargaining agreement. In other words, employers would be mandated to sit down and agree to compensation, benefits and other terms of employment in a relatively short time frame. If no bargaining occurs within 90 days after certification, a union can request the intervention of the Federal Mediation and Conciliation Service, which will try to conciliate the matter for 30 days, and then conduct arbitration between the employer and the union. In such arbitration, the FMCS can actually impose a collective bargaining agreement between the parties that will last for two years. Many employer advocacy groups worry that this change will have a significant effect upon employers’ ability to

compete in the marketplace under terms mandated by a federal agency under compelled arbitration.

The EFCA would also impose harsher penalties upon employers for discrimination against union members and terminations determined to violate an employee’s bargaining rights, requiring that, if such occur during a union organizing campaign or while a collective bargaining agreement is being negotiated, the employer must pay damages of three times the backpay award to such employee, and, if such practices are willful or repeated, an additional civil penalty of up to $20,000 per occurrence.

Additionally, two other bills will likely be signed by the incoming Obama administration that will spread unionization to sectors previously outside the scope of the labor law. The first bill, the “Respect Act,” would change the definition of supervisors – who up to this point have been excluded from collective bargaining by the 1947 Taft-Hartley amendments – to include first-line supervisors and others who exercise supervisory authority unless they spend a majority of their work time hiring or disciplining employees or adjusting their grievances. The second bill, the Teaching and Research Assistant Collective Bargaining Rights Act, would reverse the Board’s determination that teaching assistants are not employees within the scope of the National Labor Relations Act because their relationship with universities is primarily for educational purposes and allow them to be unionized.

These bills would likely greatly expand the scope of employees who may be subject to unionization and increase unions’ membership rolls and financial muscle. The resulting change to labor relations will likely have repercussions for many years to come.

Jeffrey L. Rhodes is a partner at Albo & Oblon, LLP in Arlington. His practice focuses on labor and employment law and commercial litigation. He is also the editor of the “Virginia Employment Law Alert,” a bimonthly e-newsletter focusing on important issues and court decisions in the area of employment law. He may be contacted at (703) 312-0410 or via e-mail at jlr@albo-oblon.com.

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