Could a new federal labor law force business doors open to unions?

by Kirby Lee Davis
The Journal Record

March 26, 2009

TULSA – As union supporters once again put the Employee Free Choice Act before Congress, the Tulsa-based Labor Relations Institute offered a $10,000 prize to the first federal arbitrator to prove he or she had indeed settled a first contract between a union and private employer in less than 90 days.

Twenty days later, LRI Chief Executive Don Wilson said no one had met the challenge.

That plays a bit like theatrical flare, suggested University of Tulsa labor law professor James C. Thomas, since up to this point, those mediators primarily handled union disputes with municipalities and other government bodies – not private employers.

But that’s a key point to Wilson, whose 29-year-old firm has seen its products and services used in more than 10,000 union elections.

LRI’s still-unclaimed reward refers to a key binding arbitration provision in the proposed law. That act, according to Wilson and some other theorists, could force businesses to not only allow employees to unionize, but take owners and management out of the process of forming that labor environment.

State union leaders scoffed at those fears, especially since Oklahoma operates under the 2001 Right to Work law, which gives employees the right to opt out of paying union dues.

“We don’t go to employers looking to organize,” said Jimmy C. Curry, president, secretary and treasurer with the Oklahoma State AFL-CIO. “It’s the employees that come to us. When they’ve been mistreated or something’s been done wrong, they come to us. We don’t come to them.”

That 90-day binding arbitration timeline has been overshadowed by a much-more debated element of the phoenix-like bill, the card check provision that would allow unions to set up shop without a formal employee vote if they can get 50 percent of workers, plus one, to sign a card backing formation of a union.

Those two elements, with increased employer penalties, comprise the main sections of the Employee Free Choice Act, proposed legislation that was officially re-filed for congressional scrutiny this month. While Don Wilson foresees the bill undergoing some revision through the legislative process, he fears the act will become law sometime this year, since union-favoring Democrats control both Congress and the White House.

Compromise talk by Starbucks, Costco and other companies mirror that admission, said Wilson, who founded LRI in 1980.

While LRI opposes all three sections of the Free Choice bill, Wilson sees binding arbitration as the most dangerous element. To some business advocates, it represents a fundamental challenge.

“The freedom and security of Oklahoma’s work force will be negatively impacted if this bad piece of legislation becomes law,” said Richard P. Rush, president and CEO of The State Chamber of Oklahoma.

Curry said he expects such talk from pro-business advocates – which is how he sees LRI. Thomas agreed.

“I think if you’re objective, you have to examine who the messenger is,” said Thomas, who has taught labor law at the TU College of Law for 40 years.

“What happens with the secret ballot, which the chamber of commerce suddenly is embracing, is these employers spend all kinds of money with public relations firms to basically totally destroy the image of unionism and unions,” said Thomas.

Union organizers have a difficult time countering this because “at that stage they have very little money,” he said. “They’re operating on a shoestring.”

“Basically the Free Choice Act takes away from the employer this ability to use PR tactics to destroy the union’s ability to unionize,” said Thomas.

While Wilson could recall similar instances of peer pressure by union sympathizers and organizers, he put greater concern and emphasis on how the law would change the process establishing any new union.

Under the act’s existing language, which Wilson admitted was somewhat vague, business leaders and union organizers would have only three months to iron out their first contract agreement. If that failed, the two parties would go before mediators, who had 30 days to find a solution. If that failed, the case would automatically go to arbitration under the Federal Mediation and Conciliation Service.

Since Wilson said most cases he’s worked on have taken a year or more to iron out an initial contract, he thought the Free Choice Act timeline unrealistic. Since the act forces both sides into arbitration under the FMCS, which lacked much background in business, he said it gave unions no incentive to bargain and every incentive to await arbitration.

“I can’t imagine what some of these contracts are going to look like,” Wilson said.

$10K Reward Remains Unclaimed

TULSA, Okla. (March 10, 2009) – Labor Relations Institute issued a challenge last week, offering to donate $10,000 to a charity on behalf of the first federal arbitrator who could show they have settled a first contract between a union and a private-sector employer in less than 90 days.

After nearly a week, no EFCA “Super” Arbitrators have stepped forward to claim the prize.

“We’re not surprised to see that nobody has claimed the prize yet.  Of the more than 10,000 union elections Labor Relations Institute has been involved in over the years, we’ve never seen a first contract settled in less than 90 days,” said LRI President and General Counsel Phillip B. Wilson.  “In our experience, the time limit the Employee Free Choice Act puts on the arbitration process is unrealistic to the point of absurdity.  Our concern is that the hype surrounding the card check portion of the proposed legislation will divert attention away from the very real threat binding arbitration could have on businesses in the United States.”

The Employee Free Choice Act was introduced in the U.S. House and Senate today by Congressman George Miller (D-CA) and Sen. Tom Harkin (D-IA).

LRI opposes all three sections of the Employee Free Choice Act: card check, binding arbitration and increased employer penalties, but says arbitration is the most dangerous and overlooked part of the legislation.

According to Wilson, card check has received the most attention due to the emotional connection people have to protecting the right to vote.  Wilson, who has appeared before Congress on several occasions as an expert on labor law, is now pleading with public officials to not get too caught up in the emotional debate.

“We feel card check is only a smoke screen for EFCA’s true fatal flaw, which is the binding arbitration process,” Wilson said.  “It takes power away from the employers and union members by putting the long-term fate of the company in the hands of people unqualified to make those decisions – people who don’t have a stake in the outcome of those decisions.”

For information about the $10,000 reward, please call Labor Relations Institute at 918.361.4497 or email pbwilson@lrims.com. 

About Labor Relations Institute

Labor Relations Institute, Inc. is the nation’s leading union avoidance and positive employee-relations consultants. LRI provides the widest possible range of consulting, employee communications products, sophisticated databases and deep intelligence services. LRI’s products and services have been used in more than 10,000 union elections.  For more information, please visit www.lrionline.com.

Wanted: EFCA “Super” Arbitrators

The Labor Relations Institute issued a challenge yesterday, offering a $10,000 reward to the first Federal arbitrator who can show they have settled a first contract between a union and a private-sector employer in less than 90 days.

LRI has been involved in more than 10,000 union elections, and we’re betting a dollar for each of those elections that the 90-day timeline is a joke.

The goal of the reward is to draw attention to what LRI considers the fatal flaw in the Employee Free Choice Act: binding arbitration. It’s a mistake to over simplify EFCA as the card check bill, because its too easy for people to debate on both sides of that issue. There is no way anyone who has ever been involved in a union election can say with a straight face that a 90-day arbitration period is realistic.

Two years is a long time for any business to live with a bad union contract. If EFCA passes, and there are Federal arbitrators – with no experience with your company or your industry – deciding your company’s fate with no stake in the results, you can bet there will be many, many more bad union contracts.

The Employee Free Forced Choice Act is bad for business, and bad for employees.

EFCA Next Week?

As mentioned in our Webcast yesterday, and posted on our blog on Tuesday, we may see the Employee Free Choice Act introduced on Monday, March 9th. If you are not prepared by now, you had better take the appropriate steps!

Employee Free Choice Act Webinar on March 4th

LRI is co-presenting a webinar on the EFCA on March 4th at 12PM Central with the law firm of McAfee and Taft. The Webinar is sponsored by the Oklahoma Chamber of Commerce and the Council of State Chambers. To learn more about the Webinar take a look at the invitation here.

Card Check not a cure, just another symptom

When todays employers attempt to highlight the many reasons why union representation is not in the best interest of their employees, they often point to the many laws on the books to protect them. Minimum wage, Health and Safety, EEOC, Family Leave and many others are now laws that employees can count on in providing fairness in the workplace. They’ll point out that before these laws were passed, unions often provided these services, and as such, perhaps justified their existence.

But no more.

What gets left out of the conversation is that these very laws are on the books today as a result of the very intense pressure and lobbying efforts from yesterdays labor unions. Unions that once took their charge as a voice for all working Americans, not just union members, seriously. They believed that raising the standards of all Americans would also lift up their members. A rising tide as it were. They spent millions of their members money to help make these important changes to our work culture. And they made a difference.

Labor is now spending many more millions of dollars in an attempt to pass The Card-Check bill, hyping it as a cure-all to what ails them. However, I think this bill provides an excellent opportunity for employers to point to as a perfect example of what’s really important to organized labor today. EFCA is a symptom of the disease, and hardly the cure for it. In stark contrast to all of those other bills above, this legislation lifts up not one worker. It doesn’t address any issue of concern to everyday, working Americans. It’s sole attempt is to help bail-out unions. And it does so at the expense of those very workers who they’re charged with speaking for. Unlike all of the other legislation that gave workers new rights, today’s modern version of unions are spending millions to take them away from your workers.

Lost in all of this is the missed opportunity that labor has to redefine itself as relevant to workers. Their failure to enter the discussion on more important issues like Universal Health Care, our national trade policies, and other important topics ripe for discussion should be used as an example when talking to your employees about what is really important to organized labor today.