February 2009

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What’s Next for Open Shop Employers?  

Big Changes in Labor Law Expected in the New Administration  


By Maurice Baskin  


Now that the Obama administration has taken office, organized labor is closer than ever to seeing a revolutionary agenda enacted in 2009. Plaintiff trial lawyers and employee rights advocates likewise are seeking changes that will impose dramatic new burdens on employers. If the proposals on the table become law, expect a significant negative impact on open shop contractors in the construction industry.

The centerpiece of the pro-union legislation Congress is expected to consider this session is the Employee Free Choice Act (EFCA), also known as the card check bill. This bill would fundamentally tilt the playing field in favor of union organizing. All open shop contractors should learn the ramifications of this bill and should prepare to defend against a major union organizing assault if the bill becomes law.

The first section of the EFCA eliminates the right of employees to a secret ballot election on the subject of union representation, favoring instead a mere check of authorization cards that unions would collect from employees and submit to the National Labor Relations Board (NLRB). The card signing process would have none of the protections of secret ballot elections, and employees could be subjected to peer pressure, threats and miscommunication throughout the card-signing process. Employers might not know a card signing campaign is under way and could lose any opportunity to speak to their own workers about unionization.

Beyond the card check provisions, the EFCA would require unionized employers to submit to compulsory arbitration of their first union contracts in the absence of an agreement. This would mean that, for the first time in the history of the National Labor Relations Act (NLRA), every aspect of private businesses’ wages and working conditions would be dictated by the federal government (through enforcement of the arbitration decision).

Finally, the proposed EFCA would impose new penalties against violators of the NLRA. Employers would be subjected to potentially crippling fines at the behest of union activists who have suffered no actual damage. These penalties would be coupled with a strong union push for government “blacklisting” of labor law violators.

Enactment of the EFCA would radically depart from decades of settled labor law, and the negative impact on open shop employers is likely to be dramatic.

In addition, the union agenda includes new support for union-only project labor agreements (PLAs) on federally funded construction work.

Another union-backed piece of legislation, the so-called Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act, would change the definition of “supervisors” so that many contractors would be forced to allow working foremen to join a union instead of treating them as part of the management team.

Organized labor also has openly announced its intention to seek repeal of Section 14(b) of the NLRA, which currently protects the right-to-work laws of 22 states.

Open shop contractors that are unprepared for the new labor law environment face a serious threat of being “picked off” by union organizers, or debarred from government construction contracts, without any opportunity to protect their businesses. At a minimum, contractors must train their managers on how they can legally respond to union organizing. More importantly, contractors must greatly improve their supervisor-employee communications to yield effective responses to the early warning signs of increased union activity.

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