A boost for Big Labor?

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Chip Jones

A roomful of human resources professionals is asked for a show of hands: How many have seen the proposed union election cards that would be used across the nation if Congress passes the Employee Free Choice Act this year?

Only a scattering of hands shoot up. That’s not surprising, observes Clinton Morse, a Roanoke-based lawyer with LeClairRyan.  Most HR staffers in Virginia haven’t been exposed to labor organizing. 
“We have a whole generation of people in leadership positions or management who have never focused on this very complicated issue,” adds Gregory B. Robertson, a labor attorney at Hunton & Williams in Richmond who also addressed the seminar in downtown Richmond, sponsored by the Virginia Chamber of Commerce.

In fact, fewer that than 4 percent of Virginia workers — an estimated 129,000 employees — belong to unions. Nationally, unions represent only about 12 percent of the American work force — and only 7.5 percent in the private sector. This marks a precipitous drop from the post-World War II Big Labor era when unions represented more than one in three American workers.

But the Employee Free Choice Act (EFCA) and a newly dominant Democratic Party could reverse that downward trend. EFCA — often known as the “card-check act” — would make it easier for unions to become collective bargaining agents at worksites. Unlike current labor law that dates back to the Great Depression, the card-check act does not require a secret ballot election to certify a union at a workplace. Rather, a majority of workers can approve union representation by signing cards that require a worker’s name, address, phone number and position.

Robertson compares the card-check process to “signing a petition if you’re walking into a grocery store” and predicts coercion or threats by union organizers — a charge that labor officials deny. But since “good unions want to keep organizing secret,” Robertson says, the card-check law would make stealth organizing likely. “That’s it,” he warns the HR representatives. “End of game.”

Bill failed in 2007
The card-check bill passed the House in 2007 by a vote of 241-185. But the legislation failed in the Senate when supporters fell nine votes short of the 60 needed to protect the bill from a Republican filibuster. Now the numbers are expected to change with the election of President Barack Obama and Democrats who gained sizable majorities in the U.S. House of Representatives and Senate.
Obama, who garnered crucial labor support during the election, has pledged to sign EFCA if it is passed by Congress. According to published reports, organized labor spent $450 million on election efforts. One of Obama’s early union backers — the Service Employees International Union — has vowed to wage a $10 million “accountability campaign” to urge Obama and Congress to pass the bill in the 100 days after Inauguration Day.

With 58 Democrats in the Senate (this includes two independents who caucus with the Democrats, Joe Lieberman of Connecticut and Bernie Sanders of Vermont), the bill “will pass in 2009 along party lines unless the Republicans can filibuster,” predicts Robertson.

Such an outcome could quadruple the number of union members in Virginia and give organized labor nationally a boost in membership and finances (about $5 billion in additional union dues), according to Morse and Robertson.

Besides the high stakes nationally — and the rise of labor’s political clout — the card-check issue has created a unique conundrum for Virginia’s freshman senator, Mark R. Warner. Unlike Sen. Jim Webb, a fellow Virginia Democrat who co-sponsored the bill, Warner refused to take a clear position on EFCA during his fall campaign.

Hugh Keogh, president and CEO of the state Chamber of Commerce, says that Warner “has been curiously ambiguous about this issue. We fervently hope that he’ll recollect the strong business community support he enjoyed both as a governor and as the senatorial candidate and come to appreciate the depth and sincerity — and genuine concern — of the business community.”
In a prepared statement for Virginia Business, Warner says, “I believe there is a need for reform in this area, and this legislation should be debated and voted upon by the Senate.

“As the proposal moves through the legislative process,” Warner continues, “I intend to work for a solution that allows workers and management to be adequately informed, and that provides a fair and level playing field for both sides. On this issue, and many others, I will work with both business and labor to find ways to reach an appropriate balance that helps ensure that America remains competitive in the global economy.”

A signal of Warner’s ambitions
Warner’s vote on the card-check law will signal whether he harbors ambitions for the White House, says Stephen Farnsworth, assistant professor of communication at George Mason University. “If Mark Warner wants to run for president, then he does not want to stand in the way of something that most Democrats are going to vote for,” Farnsworth says.

Noting Warner’s past centrist leanings, the professor says it may be hard for the senator to maintain a comfortable perch in the middle. “The large Democratic Senate majority means that it will be much harder for the GOP to block votes by threatening filibusters,” Farnsworth says. “There will be votes on more controversial Democratic-favored legislation than in the past. That is why Warner will have to vote in the coming years on liberal things the GOP would have been able to keep from getting to a vote when they had a larger majority.”
Labor lawyers around Virginia are not waiting for Warner to show his hand. They have been warning business clients that a fundamental shift in labor law is coming — even while the economy is tanking.

This “could not be a worse time to open the floodgates on unionizing,” says James V. Meath, labor employment specialist at the Richmond office of Williams Mullen. “No matter where you stand [on labor issues],” he says, the card-check bill is “going to take everyone’s eye off the ball” in doing business during a recession.

In addition to EFCA’s card-check provision, Meath says he’s equally concerned about parts of the 2007 bill that required arbitration if a newly certified union fails to reach agreement with management on a first contract within 120 days of collective bargaining. In such a case, an outside arbitrator’s ruling would be final — and neither the union workers nor their employer could reject it.
“That is huge!” Meath exclaims. “Here’s somebody who doesn’t know your business” who is given absolute power in the contract negotiations. Plus, he says, “The act is now punitive, it’s not remedial. There are significant fines — $20,000 — for violating the act.”

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