Published: March 22, 2009

Employers oppose increased fines for union-busting

If you haven't yet heard of the Employee Free Choice Act, get ready.
The legislation introduced in Congress earlier this month is sparking a political battle royale between organized labor and industry.

Unions argue that the bill -- which could bring the most sweeping changes to U.S. labor law since 1935 -- would help stimulate the economy and correct what they feel is a system tilted toward employers.

Business groups fiercely oppose the legislation and are basing their resistance on what they say is a "mom and apple pie" issue -- the potential elimination of a secret-ballot election in most union drives.

"I have never seen a piece of legislation that has employers and human resources professionals more concerned," said William Bowser, a partner in the employment law section of Wilmington-based Young Conaway Stargatt & Taylor.

The most visible piece of the act is a provision known as "card check." Under the current system, at least 30 percent of employees must sign authorization cards to begin the organizing process.

If a union gathers signatures from more than 50 percent of workers, the employer could accept the union as valid. But most often, the election administered by the National Labor Relations Board.

Under the Employee Free Choice Act, unions would only need to gather authorization cards from a majority of workers to establish a union in any given workplace. The law would still have a provision for a secret-ballot election, but such elections would likely happen only rarely.

Rich Heffron, senior vice president for government affairs for the Delaware State Chamber of Commerce, said the secret ballot should be regarded as "sacred." He said a majority of the chamber's members oppose the legislation, with the strongest opposition coming from the manufacturing and construction industries.

"The one thing that bothers people the most is the secret ballot," Heffron said.
Unions and their advocates say the current system tends to favor employers. Elections are generally held after a waiting period of about 40 days, during which companies can hold meetings to campaign against unionization, and union organizers are not allowed on company property.

"It's not at all a level playing field during that campaign period," said Michael Goldberg, a professor at Widener Law School who specializes in labor and employment law.

Goldberg, who said he's generally sympathetic to unions but not a "knee-jerk" supporter, said companies will sometimes engage in illegal efforts to intimidate employees, including firing workers involved in the union drive. The Employee Free Choice Act would strengthen penalties for such actions.

The bill's opponents argue that lowering the barriers to unionization could increase the possibility of abusive practices by unions and subject employees to a decision in which they had no say.

"Before such an important decision is made, employees should be educated on the pros and cons," Bowser said.

A less-discussed provision of the Employee Free Choice Act could represent an even bigger concern to employers than the secret ballot issue. The act would require third-party arbitration if a company and newly certified union can't agree on an initial labor contract within 120 days.

This mechanism, known as "interest arbitration," exists in the public sector in some states, including Delaware. But in the private sector, labor and management are expected to hammer out their differences at the bargaining table.

"That is sort of a wild card in this whole thing that has never been tried here in the United States, in the private sector," Bowser said.

The Employee Free Choice Act has the support of President Barack Obama and Vice President Joe Biden. The bill's fate is likely to rest with the Senate, where supporters will need to garner 60 votes to avoid a bill-killing filibuster.

Delaware's Democratic senators, Tom Carper and Ted Kaufman, have both signed on to the bill as co-sponsors. But Carper said in a statement that he believes the secret ballot "serves to protect employees from intimidation from both employers and unions," and he's hopeful a compromise can be reached on the issue.
Rep. Mike Castle, R-Del., also expressed reservations about the card check provision and called for Congress to work toward a compromise.

Indeed, many observers expect legislation, if it passes, to differ from the way the bill is currently written. One such proposal calls for a system that would preserve the secret ballot but institute a "quickie election" that shortens the waiting period after the initial petition.

The relevance of labor issues in Delaware was illustrated last week, when union leaders and elected officials held a protest outside Wilmington Trust's headquarters on Rodney Square over practices of the bank's cleaning contractor, Wilmington-based Optima Cleaning Systems.

The Local 32BJ of the Service Employees International Union claimed the company has engaged in a "campaign of intimidation and surveillance" that included photographing and videotaping union activity on public property and following union organizers who visited employees at their homes.

Sam Lathem, president of the state AFL-CIO, said Optima was a "poster child case" for why the Employee Free Choice Act should be passed. Lathem and other advocates argue that expanding unions will lead to better-paid workers, which will inject more money into the economy.

"I think it's only the right thing to do," Charles Henry, a 43-year-old Optima worker, said about forming a union.

Henry said he has worked for Optima for nine months and earns $9 an hour. "We can't all continue to live and work in poverty," he said.

Optima's owner, Thomas Delle Donne, denied the union's allegations. He said union representatives have illegally entered buildings where Optima employees work, and company officials have photographed the union representatives and given the photos to the property owners.

Business groups argue that the Employee Free Choice Act would add a new burden to companies at the worst possible time, leading to further job losses.

Delle Donne said he didn't have an opinion on the Employee Free Choice Act.
But he said he is proud that his 22-year-old business, in the midst of a recession, has not had to lay off any workers or reduce their hours or pay.

"We're fighting to keep a single-digit profit margin and not cut any employees," Delle Donne said.