The Lowenbaum Partnership, LLC

RESOURCES

March 2007 E-Alert

This E-Alert is being provided to clients and friends of The Lowenbaum Partnership and should not be considered as legal advice but may be considered an ADVERTISEMENT by the Missouri Bar Association.

On March 1, 2007, several Republican members of the House of Representatives joined with 228 Democratic congressmen to pass the Employee “Free Choice” Act. It is expected to be presented to the Senate within the next week.

If signed into law, the Employee “Free Choice” Act would not only have a devastating effect on virtually all employers, ironically it would also effectively eliminate employees’ “free choice” by eviscerating the secret ballot election process that the NLRB has effectively utilized for over 70 years to determine whether employees want union representation.

Currently, under the National Labor Relations Act, a union must collect signed “authorization cards” from at least 30% of the employees in an appropriate voting unit. The union then submits the cards to the NLRB and files a “Petition for Election.“ Employees often sign authorization cards because they are pressured by the union or their co-workers, or because the union misleads them about what they are actually signing. After several weeks, the NLRB conducts an election allowing employees to vote by secret ballot to determine whether or not they want union representation. During the time period before the election, the company has the chance to explain to employees the downside to unionization and the benefits of remaining union free. By the time an election takes place, many of the employees have “seen the light” and vote “NO” to unionizing.

Under the Employee “Free Choice” Act, a union that collects authorization cards from a majority of the employees that it wishes to represent simply presents them to the NLRB. Assuming the cards are “authentic,” the NLRB will certify the union as the employees’ representative, without allowing employees the right to vote in a secret ballot election. (This has been the law for public employers in Illinois for about two years, and in that time, hundreds of municipalities and other public employers that otherwise would never have been organized are now “union”). To decertify a union the employees will still have to use the NLRB election process allowing unions to block the election and deny the employees’ choice to be union free.

The Employee “Free Choice” Act does not stop there. The Act also calls for mandatory “interest arbitration” when the parties reach an impasse in initial contract negotiations. Thus, if the parties cannot reach an agreement on their own, they would present their offers to an “impartial” arbitrator, who would decide what should go into the parties’ contract. (Again, this is the law for “essential” public employees in Illinois who do not have the right to strike. Experience tells us that interest arbitration is typically a losing proposition for employers, unions and employees alike.)

Further, the “Free Choice” Act would require the NLRB to seek a “mandatory injunction” against any employer whenever it has “reasonable cause” to believe that the employer has discharged or discriminated against an employee who is involved in union organizing, or threatened to do so. And, in cases when a discharge is found to be unlawful, the Employee “Free Choice” Act would require the employer to pay treble damages and civil penalties instead of the “make whole” remedy currently found under the National Labor Relations Act.

If the Employee “Free Choice” Act becomes law, we believe unions will immediately begin collecting authorization cards from employees nationwide before employers have the chance to fully educate their managers, supervisors and employees about the facts of unionization.

DON’T GET CAUGHT UNPREPARED!

At the Lowenbaum Partnership, our experienced “traditional” labor law attorneys regularly educate our clients, their managers and supervisors on union avoidance techniques, plus teach them how to ask employees the “right” questions and to effectively and lawfully talk to employees about the benefits of a union free workplace. Usually, however, we provide this education once we learn that an organizing campaign is underway. With the Employee “Free Choice” Act, that won’t be possible.

NOW is the time to train your supervisors and managers on union avoidance techniques.

This E-Alert is intended as in informal summary of certain recent legislation, cases, rulings and other developments. This E-Alert does not constitute legal advice or a legal opinion and is not an adequate substitute for advice of counsel. This E-Alert is not intended to nor does it create an attorney-client relationship. The choice of a lawyer is an important decision and should not be based solely upon advertisements. © The Lowenbaum Partnership, LLC. All Rights Reserved.

If this E-Alert is deemed to be an advertisement please disregard this solicitation if you have already engaged a lawyer in connection with the legal matter referred to in this solicitation. You may wish to consult your lawyer or another lawyer instead of us. The exact nature of your legal situation will depend on many facts not known to us at this time. You should understand that the advice and information in this solicitation is general and that your own situation may vary. This statement is required by rule of the Supreme Court of Missouri.