When Elections Aren’t Enough

Legal Corner

Volume CVII, No. 4April, 2007

Harvey Mars, Esq.

These days, workers are finding it harder and harder to form unions. But there is an ongoing effort in our newly-composed Congress to make long overdue changes in the National Labor Relations Act that every union member in the United States should be aware of and support.

This effort is embodied in a piece of legislation known as the Employee Free Choice Act, which was passed by the U.S. House in early March.

As Allegro went to press, the Senate was supposed to consider this legislation.

The act would bring sweeping reform to the means by which workers form unions and would enhance enforcement mechanisms available to the NLRB in the event an employer violates the law.

I am enthusiastic about these reforms and believe that they potentially can revitalize America’s slowly eroding union movement.

One major area where the Employee Free Choice Act would help is the streamlining of the union certification process.

Currently, unless an employer is willing to voluntarily recognize a union, the primary way a union is chosen is through an election conducted by the NLRB. (I wrote my October 2004 column about this.)

The process of getting to an election is arduous and filled with pitfalls that can jeopardize any organizational campaign.

If employers wish to delay and frustrate a union organizing drive, they may do so by legal stalling.

Technically, this involves simply forcing a union into a hearing regarding the proper composition of a bargaining unit.

This requires litigation of the issue and can set an election date back months — or years, if appeals are taken and further hearings are required.

During the hearing process, the employer is free to engage in anti-union tactics.

So this time lag alone is enough to diminish union support.

Under this new legislation, unions may seek automatic certification if they can prove that they have majority support in any unit of employees appropriate for bargaining.

If a union has a majority of employees who have signed union authorization cards — the simplest way of demonstrating majority support — no election need occur and the employer will be required to bargain with the bargaining unit.

Furthermore, the Employee Free Choice Act would help unions negotiate contracts as well.

That is to say, once workers win a union election, it is often difficult — if not impossible — for the union to negotiate a first contract.

Once workers form a union, you only have one year to negotiate your first contract. If there is no agreement in place after a year, the union runs the risk of being decertified.

Under the Employee Free Choice Act, mediation services will become immediately available — and if an agreement is not consummated, an arbitration may be conducted setting forth the terms of the new agreement for a period of two years, unless the parties agree to a different period of time.

Finally, the law would now require the NLRB to seek a mandatory injunction against employers who fire or discriminate against workers for exercising their rights to organize or enter into a first-time contract.

As a union-side practitioner for some 20-plus years, I have often been demoralized by the limitations in the National Labor Relations Act.

The arcane procedures in the law often serve the interests of employers who are dead set against unionization and are willing to spend whatever resources necessary to accomplish the defeat of the unionization effort.

We should all write our senators and implore them to support the Employee Free Choice Act.

Harvey Mars is one of Local 802’s legal counsel. Legal questions are welcome from 802 members. E-mail them to Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.