Businesses scurry to build defenses for possible unionizing onslaught

By Michael Mishak (contact)

Monday, May 5, 2008 | 2 a.m.

Big business is taking steps to fend off an expected flood of unionizing drives if Congress approves legislation making it easier for workers to organize.

In a trend being followed closely in Las Vegas and other strong union communities, businesses across the country are moving to improve relations with workers in anticipation of the Democrat-supported Employee Free Choice Act. It would for the first time in 60 years allow workers to organize without putting the issue to a secret-ballot vote.

The legislation has a chance of winning approval if Democrats increase their clout in Congress and voters elect a Democratic president in November. Both Democratic presidential candidates have pledged to sign the legislation.

The law would also stiffen penalties for employers who commit unfair labor practices during an organizing drive and impose binding arbitration in bargaining cases in which the sides cannot agree.

Taken together, the changes would shake the foundations of modern labor law and likely usher in the largest unionization drive since the passage of the National Labor Relations Act in 1935. Chicago-based Seyfarth Shaw LLP, a leading labor relations law firm, held a Web seminar last month outlining the implications of the bill for management.

As Amanda Sonneborn, a lawyer with the firm, put it: “When you’re an employer, you read it and weep.”

Most significantly, card check would allow unions to circumvent a secret-ballot election supervised by the National Labor Relations Board. Instead, unions would need only to collect signed cards from a majority of employees over a period of time.

Unions have long derided the election process as stacked in favor of employers, who have the right to campaign against the union in the run-up to an election. Labor advocates say companies use mandatory informational meetings, among other tools, to threaten and intimidate workers.

To illustrate card check’s cascading effect, Sonneborn pointed to Illinois.

The state passed mandatory card check in 2003. As a result, union density soared, she said. The International Union of Operating Engineers Local 150, for instance, doubled its number of bargaining units in four years, Sonneborn said.

In Las Vegas, the Culinary Union has tripled its membership over the past 20 years primarily through negotiating voluntary card check agreements with casino companies. The union added 10,000 members from 2002 to 2005 alone — and will add another 6,000 when MGM Mirage’s CityCenter opens in 2009.

In Canada, the effect also has been striking. Thirty-two percent of the country’s workers belong to a union, a density not seen in the United States since the American labor movement’s pinnacle in 1955. Only 12 percent of American workers today belong to a union. Labor benefits from mandatory card check laws in some Canadian provinces. Alberta sports the lowest union density of those places — a whopping 24 percent.

“There will be no opportunity for you to run a campaign,” said Bob Smith, another lawyer with Seyfarth Shaw. “You’ve got a union before you had any opportunity to get out of the gate. So the campaigning begins now and lasts every single day.”

Under the card check bill, employers would face fines for unfair labor practices of up to $20,000 per violation.

Employers would also lose their right to “bargain to an impasse” in contract negotiations. Although unions win roughly half of all NLRB elections, they failed to win a contract in 44 percent of bargaining cases in 2004, Sonneborn said.

Successful negotiations last a year on average. But under the proposed law, parties must begin bargaining within 10 days of card check certification. Then, if a settlement hasn’t been reached after 90 days, the union can request federal mediation. The sides then have another 30 days to negotiate a voluntary agreement. Failing that, a third-party arbitrator would impose a binding contract.

If the legislation is passed, “employers are headed for a big hurt,” Smith said.

Employers, he said, should mobilize the business community. “Tell them how awful life could be if this thing gets written into law,” Smith said.

Businesses also should publicly politicize the issue by painting the legislation as anti-democratic. A business-backed group, Coalition for a Democratic Workplace, is doing just that. It launched a Web site and began airing an ad last month featuring Sopranos cable-TV mobster Johnny Sac.

The law firm also encouraged employers to “harden” their workplaces against possible organizing. Companies should educate management on the early warning signs of a unionization drive and conduct focus groups with employees to gauge their concerns, the advisers said.

Unionization drives generally emerge from issues of dignity and respect, lawyer Mark Ross said. “Unions don’t organize employers,” he said. “Bad supervisors organize employers.”

Sonneborn suggested developing a “strategic response team” and reviewing hiring practices, including the use of temporary workers. Employers should strengthen their “preventative policies,” including those governing employee bulletin board use, company e-mail and building access.

“Inoculate your workforce,” Sonneborn said. “You don’t want to be the lowest hanging fruit.”

The warnings come even as the card check legislation faces significant challenges in Washington. Although the legislation passed overwhelmingly in the House last year, it went down in the Senate, 51-48, largely along party lines. Democrats need 60 votes to advance the measure in that body, which means its prospects hinge on the Nov. 4 election.

Democrats have a very slim chance of picking up the nine seats needed to reach 60.

But a stronger Democratic majority, combined with the potential crossover of moderate Republicans such as Sen. Arlen Specter, is enough to make big business nervous.

Even without the new law, if a Democrat becomes president, labor is all but certain to gain an important strategic advantage: control of the federal Labor Relations Board. The five-member board has three vacancies, and Democrats have vowed to block any more appointments by President Bush.

A Democratic president would likely appoint members who are more sympathetic to labor. The upshot: The board will ultimately determine the rules governing card check and prescribe remedies for employer violations, if the bill passes.

“We either get ready now or we invoke what I call the ‘Dorothy Defense,’ ” attorney Jim Baird said. “You just close your eyes, click your heels three times and say, ‘There’s no place for the Employee Free Choice Act.’ ”

Sun reporter Lisa Mascaro contributed to this story.