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Legislation working its way through Congress that would radically change the way unions are formed, by eliminating the decades-old union election process, has employers worried on a number of levels. The bill would allow workers to form unions by signing cards instead of voting, which employers claim would leave them in the dark about organizing activity, giving them no chance to give workers a heads-up about the potential pitfalls of unions. The measure would require employers to recognize unions after 51% of workers have signed authorization cards. An election would no longer be required. The bill would impose stiffer penalties-triple back pay and a $20,000 fine per violation-for companies that unlawfully discriminate, intimidate or fire employees during organizing efforts. And for cases in which unions and employers can’t reach an agreement, the bill would allow an arbitrator to draft the initial contract. The bill, known as the Employee Free Choice Act, has a strong chance of approval in the now Democratic-controlled Congress. It has 233 co-sponsors in the House of Representatives, including Republicans, and cleared a House committee last week. A Senate version is also in the works in Senator Ted Kennedy’s office, which expects to release the bill in coming weeks. Stealth organizing? “If this bill passes and is enacted into law, it will make every company in the country immediately vulnerable to unionization . . . .Even if you’re a small employer with 15 employees, if eight of your employees sign cards, you’re organized. And a contract can been imposed on you,” asserted attorney Marty Payson. His law firm, Jackson Lewis, has scheduled several upcoming seminars with clients to warn them about the measure. “Under this bill, the union can engage in stealth organizing and, in fact, stay underground soliciting cards in a way that employers may never be aware of, and then surface when they have that technical 51%,” said Payson, a partner in Jackson Lewis’ White Plains, N.Y., office. Pro-labor organizers say the measure is long overdue. According to congressional backers of the bill, employers illegally fire employees for union activity in 25% of organizing drives. Also, 70% of employers in the manufacturing sector threaten to relocate their plants during organizing drives. “It’s very clear that a very high percentage of workers want to unionize but they can’t navigate the system the way that it exists because they’re afraid,” said Craig Becker, associate general counsel for the Service Employees International Union, which represents 1.3 million workers, many of them hospital support staff. Becker believes that the new bill, by eliminating the secret-ballot election and imposing tougher penalties for union-busting tactics, will reduce litigation in the area of what is appropriate campaign conduct in an election process. But Charles Cohen, who recently testified against the bill on behalf of the U.S. Chamber of Commerce, believes that the bill goes too far in attempting to silence employers and limit the amount of information employees have before deciding to join a union. “Employers’ biggest fear is that unions will, by force of the government, obtain recognition rights for all employees without there being an informed choice,” said Cohen, a partner in Morgan, Lewis & Bockius’ Washington office. “It’s really the employees that are losing by not having the benefit of both sides of the story.” Another downside to the measure is that it will strip employees of their rights to privacy when deciding whether to join a union, said attorney Jim Hendricks of Atlanta-based Fisher & Phillips’ Chicago office. “Since the 1930s, employees have had the right to have a private secret ballot election under no pressure from anybody. This takes that away,” Hendricks said. “This is a big deal to employers. The ones that have been virtually impossible to organize-Starbucks and McDonald’s-where unions couldn’t really get to them, this way it could be a slam dunk.” Hendricks said that his firm has been working vigorously to notify companies about the pending legislation, encouraging them to lobby Congress and voice their concerns. “It’s going to trigger a great deal of ‘unfair labor practice’ charges that you don’t necessarily have today,” Hendricks said. “You’re going to have an employer who’s going to start acting differently when they realize there’s union organizing going on, because there won’t be an election.”

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