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The summer of 2005 marked the 50th anniversary of the AFL-CIO, the real and symbolic force of union solidarity that has shaped much of the labor law landscape over the past five decades. Rather than a coming together to celebrate a half-century of participation in the nation’s workplace and to plan a unified strategy for halting the steady decline in union membership, the July 2005 quadrennial convention provided the focal point for challenging the status quo. In a twist of irony, by the conclusion of the convention several of the largest and most powerful unions in the federation had thrown out the old playbook, left the federation and rallied around the banner of Change to Win (CTW). This new coalition includes some of the most successful unions in recent years: the International Brotherhood of Teamsters, UNITE HERE, the Service Employees International Union, the United Food and Commercial Workers International Union, the United Farm Workers, the Laborers International Union of North America and the United Brotherhood of Carpenters and Joiners of America. To date, the Laborers and Farm Workers have not withdrawn their affiliation with the AFL-CIO, but the former has expressed an intention to do so. The Carpenters had withdrawn prior to 2005. In the fall of 2005, organized labor has moved beyond front-page news stories and now must deliver results. For employers and their labor counsel, rather than signaling the end of the labor movement, the schism is likely to spawn new challenges as the two camps strive for relevance in the 21st century workplace. Labor initiatives When the AFL-CIO was formed in 1955, unions represented more than one-third of the private-sector U.S. work force. Today, slightly fewer than 8% of private-sector workers are unionized. Labor unions from both camps are fighting to reverse that trend. The AFL-CIO has indicated it will continue to focus resources on politics and lobbying, while also earmarking $22 million to support local organizing efforts and train 1,000 union stewards. Change to Win is focused on organizing. During CTW’s recent convention, it pledged that its member unions would spend nearly $750 million annually on organizing and would target 500,000 potential recruits by the end of the year. CTW has dedicated significant funds to corporate campaigns in health care, retail, textile and telecommunications; increased organizing on an industrywide scale using Weblogs and Web sites; and organizing in service-industry fields that cannot easily be outsourced overseas. In already organized industries and organizations, both the AFL-CIO and CTW are working on strategies for collective bargaining keyed to coordinating agreements within particular industries and geographic regions. Unions have learned through experience that synchronizing expiration dates for collective bargaining agreements within an industry segment or geographic area increases a union’s power in future negotiations. This tactic enhances the perception of union strength and entices unorganized workers seeking representational clout. A growing number of U.S. employers already have experienced more creative approaches by unions, some of which have generated legal challenges and legislative initiatives. For some employers, the highly strategic and coordinated “corporate campaign” has delivered a multifaceted attack designed to pressure the employer during contract talks or organizing drives, weakening bargaining positions. These pressures often include an appeal to the public to form around a common social cause; message campaigns directed at the employer’s clients, suppliers and vendors-as well as shareholders, investors, creditors, banks, company officers and outside directors; union-supported employee complaints to regulatory agencies and legal claims over overtime or safety; political pressure; and internal dissent typified by sickouts, work slowdowns and confrontations. Other nontraditional approaches used by both AFL-CIO and CTW unions are neutrality and card-check agreements. In 2004, between 150,000 and 200,000 employees were organized as a result of card-check agreements, according to the AFL-CIO, while only 70,000 joined unions through traditional National Labor Relations Board (NLRB) election processes. Neutrality agreements require the employer to remain neutral during a union organizing drive by agreeing not to exercise management free speech rights under � 8(c) of the National Labor Relations Act (NLRA) to communicate with employees on the topic of unionization. Section 8(c) reads, in pertinent part: “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act.” 29 U.S.C. 158(c). Neutrality agreements have proven to be successful particularly when an employer already is partially unionized or has close ties to other unionized facilities or organizations. Card-check agreements by unions and employers do not require the union to seek an NLRB-supervised representation election. Rather, the employer agrees voluntarily to view signed union authorization cards, thus obligating the employer to recognize the union without an NLRB-conducted election if a majority of eligible employees in an appropriate bargaining unit have signed the cards. Legal challenges The increasing and successful use of these nontraditional techniques has spawned a number of legal and legislative reactions. For example, currently pending before the NLRB are two consolidated cases involving decertification petitions filed by employees shortly after the employers voluntarily recognized the unions based on a check of authorization cards signed by a majority of employees. The decertification petitions sought secret-ballot elections for determining union representation but were dismissed pursuant to the labor board’s “voluntary recognition bar.” This NLRB precedent bars decertification petitions for a reasonable period following voluntary union recognition. A ruling is expected in the near future either eliminating the voluntary-recognition bar, upholding the bar or creating a window of time and circumstances under which a decertification petition would be deemed timely and appropriate. Any of these outcomes could have a significant effect on union strategies. Dana Corp., No. 8-RD-1976 and Metaldyne Corp., nos. 6-RD-1518 and 6-RD-1519 (NLRB filed June 7, 2004). In a separate recent case involving neutrality and card-check agreements, an NLRB administrative law judge recommended dismissal of unfair labor practices charges filed against the United Auto Workers (UAW) and Dana Corp., finding that the parties’ agreement did not constitute an unlawful prerecognition contract between the parties. Dana Corp. and Gary Smeltzer, No. 7-CA-46965 (NLRB A.L.J., April 11, 2005). Prior to the UAW being recognized as the bargaining agent for the employees of Dana Corp., the parties entered into a letter agreement that the company would remain neutral, provide the union with a list of employee names and home addresses, allow access to those employees in nonwork areas during working hours and recognize the union upon a showing by the labor organization of signed cards for a majority of the employees at the location. The parties also agreed any future contract would contain several predetermined issues. Under the NLRA, it is unlawful for an employer and a union essentially to agree on a contract prior to the union being recognized as the collective bargaining agent for the employees. Apparently to establish unlawful recognition, the NLRB general counsel argued that the parties had negotiated substantive terms and conditions of employment, most of which were concessionary in nature, in exchange for card-check and neutrality provisions that would expedite the recognition process at the plant. On procedural grounds, the administrative law judge recommended dismissal of the charges, arguing that the general counsel did not plead the act of unlawful recognition in his complaint. Still, the litigation emphasizes the important role that neutrality and card-check agreements play in current labor organizing strategies. Legislative front The battle over reliance on traditional methods to decide the issue of union representation-that is, secret-ballot, government-conducted elections-or the neutrality and card-check agreements preferred by organized labor has reached Congress with the introduction of the Employee Free Choice Act, H.R. 1696, 108th Cong. (2d Sess. 2005), advocating neutrality and card-check processes that would virtually eliminate the traditional process. With a Republican-controlled Congress and administration, its passage is highly unlikely. At the state level, both New York and California have sought to impose neutrality by restricting employers receiving government funding from using those funds to communicate to employees about unions. Both laws have been challenged successfully as being pre-empted by the NLRA. See Chamber of Commerce v. Lockyer, nos. 03-55166, 03-55169, 2005 U.S. App. Lexis 19208 (9th Cir. Sept. 6, 2005); and Healthcare Ass’n of N.Y. v. Pataki, 177 L.R.R.M. 2359 (N.D.N.Y. 2005). Outside of traditionally heavily unionized geographic regions and industries, businesses may not be prepared for the aggressive agenda announced by both camps of organized labor to expand their organizations. The savvy legal counsel advising business clients striving to anticipate human resources needs, costs and pitfalls will incorporate an understanding of the new playbook for unions and employers into strategies for achieving the client’s labor-management objectives. Is the current labor-relations approach consistent with the client’s underlying employee philosophy and communications programs? Do policies and practices reflect that approach? What changes are appropriate in light of anticipated work force issues and corporate plans? Specifically, legal counsel should be prepared to discuss with the client how labor unions are using new tactics and techniques for reaching employees, what effect the new labor developments may have on particular industries and geographic regions, and lawful responses by the management team to employees’ questions about unions and indications of activity. For unionized employers, counsel needs specific information on developments and activities by the incumbent unions in the areas where the client does business, whether the client is likely to encounter neutrality and card-check agreements and coordinated contract negotiations, and what strategies will serve the objectives and obligations of management before, during and after contract negotiations. Conducting a preventive corporate employer vulnerability audit will help the organization to assess existing human resources policies and practices and to develop an integrated, companywide labor relations strategy that takes into account both unionized and nonunion workers. Critical to any strategy is the identification and training of individuals who meet the definition of “supervisor” under the NLRA, since they are deemed agents of the employer presumed to know management rights and responsibilities under the law, from concerted activity and union organizing to contract administration. Supervisors should be educated about the recent developments, the new and nontraditional tactics being used by both camps and the rights of management to communicate with employees about the organization’s philosophy on unions and the significance of signing union authorization cards. For unionized employers, it is important that supervisors know how to administer the collective bargaining agreement properly and to respond to the digital-age communication methods being used by unions and their members. Appropriate alternative dispute resolution mechanisms, workplace conduct policies, communications programs and a multidepartment task force are some of the methods that should be considered as part of the corporate strategy that will strengthen employee relations. Legal counsel also should become familiar with the reporting requirements under the various labor laws, such as the Labor-Management Reporting and Disclosure Act, 29 U.S.C. 401 (1959), which imposes obligations on employers, labor organizations, union officials, employees and labor relations consultants to file reports with the U.S. Department of Labor disclosing certain financial transactions with each other. The department recently announced more robust enforcement of those requirements, which carry penalties for noncompliance. The new union playbook incorporates the most aggressive approach to the competition for new members in decades. Business clients will need legal counsel able to advise them on how to develop a new employer strategy to respond. Michael J. Stief III is a partner in the Pittsburgh office of Jackson Lewis. His practice is focused on representing employers in labor and employment matters, including maintaining their union-free status. Marijane E. Treacy is a senior associate in that office, who concentrates her practice on the representation of management in labor and employment disputes. They can be reached, respectively, at [email protected] and [email protected].

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