Lawrence J. Baer is Counsel in Weil, Gotshal & Manges' Litigation department and a member of the Employment Litigation Practice Group, representing employers in all aspects of labor and employment law.
This interview addresses issues relating to Card Check and how it would affect corporations, as was raised in the White House letter and its attachments. For a copy of the White House letter and the accompanying executive summary as well as a link to the Report, which was also attached to the White House letter, see http://tinyurl.com/BRT-BC-Letter .
Editor: What features of the proposed Employee Free Choice Act are of particular concern?
Baer: There are several features of the Employee Free Choice Act that undermine the basic tenets of the National Labor Relations Act. The most basic tenet underlying the Act is that while employees are free to organize and to join unions, they are also free to refrain from organizing and joining unions. One way to assure that this basic right is preserved is to provide for a secret-ballot election, free from outside influences, in which an employee can say yea or nay to union representation in a confidential, secure and non-coercive atmosphere. Maintaining a secret ballot election will assure that an employee actually does exercise his or her free choice at the ballot box.
The EFCA bypasses the secret ballot process by requiring employers to recognize unions as the exclusive bargaining representative of their employees based not upon a secret ballot election, but upon the presentation of union authorization cards signed by someone, ostensibly their employees, under unknown circumstances, which may or may not have been in compliance with the law. These cards are typically solicited away from the workplace by professional union organizers. Sometimes they are signed during large group meetings, out in the open, under circumstances where employees may feel obligated to sign just to go along with the crowd or out of peer pressure. These cards are signed based upon incomplete and sometimes false and misleading information.
In addition, the cards may be signed under coercive circumstances. For example, a union has the ability to visit an employee in his or her home, place a card on the coffee table, put a pen down next to the card - and resist leaving until the employee signs the card. Obviously, an employee can say, "Listen I don't want to talk to you," or, "It's time for you to leave now." However, most employees will take the easy way out by simply signing the card and sending the union representative on his or her way. What these examples show is the fact that an employee has signed an authorization card, but it does not necessarily indicate that the true desire of that employee is to be represented by a union. Permitting that choice to be made under controlled conditions, in a secret ballot election, is a much more reliable indicator of that employee's free choice.
Much of the effort to convince employees to sign a card occurs outside the workplace, based upon only the statements of union organizers. At that point in the process, the employer has not yet had an opportunity to make its case. Although NLRB member Becker- has expressed a contrary view, employers have a large interest in whether their employees are represented by a union. Often, a union organizing drive takes place surreptitiously, over a period of many months, unbeknownst to the employer. Sometimes an employer is unaware of the organizing drive until it is served with a petition for an NLRB-conducted representation election.
Once the employer learns of the drive, during the period between the filing of the petition and the conduct of the election, it has an opportunity to express its views as to why it believes that unionization would not be in the best interests of the employees and the business. Although there are very strict constraints on what an employer may say to its employees during a union organizing drive, it wants to be able to tell its side of the story and, under present law, is free to do so. While the employer can't make promises of benefits or threaten retaliation in an attempt to influence the vote, it can otherwise freely share its views.
My experience is that the pendulum tends to swing back toward the employer once the employer becomes aware that the union organizing effort is underway and has an opportunity to tell its side of the story. That is what unions fear and why they are seeking to find a path to government-ordered recognition that deprives an employer of its right to have its voice heard in the process. That is why the card check provisions of the EFCA undermine another basic tenet of the NLRA, which is the promotion and preservation of the parties' rights to free speech in the representation and collective bargaining process.
Editor: Now isn't there a kind of stuff-down arrangement with respect to the first contract?
Baer: Another basic tenet underlying the National Labor Relations Act is that once a union attains the status of the employees' exclusive collective bargaining representative, it, like the employer, must bargain in good faith regarding terms and conditions of employment. However, under present law, no particular terms or outcome of that good faith bargaining process are imposed on the parties by the government. Present law does not require or assure that the parties will agree upon a contract. Essentially, the parties' relative economic strength at the time of bargaining will dictate the outcome. I have been involved in many collective bargaining processes over the years. Sometimes, the employer has the leverage. Sometimes, the union has the leverage, and the balance of power will shift from contract term to contract term.
Under the Employee Free Choice Act, if the employer and the union are not able to reach an agreement for a first contract during the 120-day period following certification of the union, the parties would be forced to go to binding arbitration to resolve the terms of the contract.
What that means is that a designee of the federal government will parachute into the collective bargaining process to act as an arbitrator who will dictate the terms of the contract. That person, though presumably familiar with collective bargaining, may be wholly unfamiliar with the unique concerns and operations of the business involved and the industry in which it operates. That just doesn't seem to make any sense for our national economy and is certainly counter to the underlying premise of the National Labor Relations Act, which presently prohibits the government from dictating the outcome of good faith collective bargaining.
Editor: I understand that the NLRB is considering using computers in union elections. Is this another way for unions to achieve some of the benefits of card check?
Baer: Confronted with its inability to obtain passage of the EFCA, including card check, it appears organized labor is using other means to pursue its agenda. On June 9, the NLRB issued a request for information relating to the possible use of electronic voting systems in NLRB-conducted elections. Presently, the vast majority of NLRB-conducted elections utilize paper ballots, which are filled out in a temporary voting booth and dropped into a sealed ballot box under the watchful eyes of an NLRB agent and an equal number of union and employer-designated observers. These elections typically occur at the employer's worksite to ensure maximum participation. In a small minority of elections, where employees are dispersed or there may be an ongoing strike or lockout, votes are cast by mail-in ballot. The NLRB's request seeks information about systems that would permit voting by computer, telephone or other electronic means, either at the employer's worksite or at remote locations. If you analyze the effect of conducting NLRB representation elections using such a system, you will see that it may not be much different from deciding representation questions under the card check provisions of the failed EFCA.
Let me explain. The NLRB has developed a wonderful phrase in its case law to describe the non-coercive atmosphere under which NLRB elections must be conducted. The NLRB attempts to ensure that elections will take place under "laboratory conditions." It attempts to preserve an atmosphere, like a laboratory, where outside contaminating factors will not interfere with the election process and its outcome.
The NLRB's use of a computer or telephonic voting system at remote locations would contaminate that desired laboratory atmosphere. It would permit employees to vote anywhere, under unknown and unobservable conditions. Votes could be cast from an employee' s home, a hotel conference room or a union hall. Those remote votes, well beyond the range of the watchful eyes of the NLRB agent and the parties' election observers, are subject to all the same problems I identified earlier when we were talking about the circumstances under which union authorization cards get signed and the reason such cards are not a reliable indicator of employee free choice. The bottom line is that if you use a remote electronic system, you cannot police the process and can never know the circumstances under which such votes were cast.
In addition, I am troubled by the process the NLRB has utilized to introduce this potentially radical change in the manner in which its elections are conducted. Using its procurement powers, it solicited information during a short 20-day period about obtaining a system that could undermine an essential brick in the foundation of the NLRA, which has been in place for the last 75 years - the conduct of a secure, secret ballot election. Why rush now? One can only suppose that it may have something to do with the fact that the EFCA is going nowhere fast and recent appointments to the NLRB have enabled the unions to pursue their agenda through other means. Under the guise of a procurement initiative, the NLRB may be taking steps to change policy in a very fundamental way. This initial step is simply a request for information. It is unclear whether the NLRB intends to go through a process of formal rulemaking, permitting the public to comment before actually introducing such a system. That remains to be seen. But right now, what we've got may well be a rush to erode the basic foundation of the NLRA, pursued in the dark of night and delivered through the back door. One has to seriously question why it is being pursued in that manner.
Editor: How do you think that employers across America will react to this?
Baer: I think that employers across America will react very strongly. Number one, I think that they will react to the fact that this appears to be an end-run around the failed legislative effort to pass the Employee Free Choice Act. They will see it as a surreptitious effort to achieve through executive fiat what could not be achieved through legislative process. Number two, employers will object to the substance of this electronic voting initiative for the very same reasons they object to the Employee Free Choice Act.
Published October 4, 2010.
