Put simply, an employer that can’t
reach a first contract with a new union within the required timeframe could ultimately lose control over some of the terms of that agreement. A panel of outside arbitrators who may have no experience with the industry or business in question could make those decisions instead and bind both sides to those terms for two years. “Under current law, there are mandatory subjects of bargaining that you have to talk about,” Spencer said. “And then there’s non-mandatory subjects that I’m sure you want to put in the contract, depending on what it might be. This completely erases that line. Anything could wind up going into those contracts.”
Federal arbitration could force employers to negotiate over issues they’ve never had to include in a collective bargaining agreement (CBA) before, including bans on stock buybacks, full disclosure of political contributions, and the placement of workers on corporate boards. “That would be a really big concern for any employer who winds up getting stuck trying to negotiate their first CBA,” Spencer said. In a recent white paper, the Coalition for a Democratic Workplace (CDW) raised concerns about what the FLCA could mean for small- and mid-sized employers. CDW warned that creating a bargaining timeline could incentivize newly formed unions to wait out the 120-day negotiating period in the hopes of achieving a more favorable initial collective bargaining agreement through federal arbitration. This would shift the union’s goal during negotiations from achieving a timely voluntary agreement to positioning itself for the best possible outcome in arbitration, CDW said. Additionally, the organization is worried that the lack of a small-business exemption in the FLCA will require
28 FEDA News & Views
“A lot of people are spending a lot of time and energy — and that includes us — to try to keep any more Republicans from defecting on this, and to help Republicans understand what the real ramifications are of this bill.”
— Glenn Spencer Senior Vice President Employment Policy Division U.S. Chamber of Commerce
smaller employers to meet the same bargaining deadlines and arbitration requirements as larger companies that have the legal and financial resources to handle an unfavorable arbitration award. Although the FLCA was passed in the House of Representatives earlier this year, it has so far stalled in the Senate. Spencer doubts it will reach the 60-vote threshold it needs to overcome the filibuster before the upper chamber’s current session concludes. Still, he sees the FLCA as a long-term risk for employers because the measure has already attracted bipartisan support and could resurface in future sessions. “Depending on how the elections shake out, you might get bigger numbers in favor of the bill if it were on the floor,” Spencer said. “A lot of people are spending a lot of time and energy — and that includes us — to try to keep any more Republicans from defecting on this, and to help Republicans understand what the real ramifications are of this bill.”
Courts Push Back on Cemex While the FLCA focuses on what happens after a union is formed, another recent development has changed
the rules governing how unions can gain recognition in the first place. Unionization rules have been in flux ever since the National Labor Relations Board (NLRB) issued its Cemex decision three years ago. The standard established by the labor case’s outcome made it easier for the NLRB to require an employer to recognize and bargain with a union after alleged misconduct during an organizing campaign, even when the union lost an election. It also changed the process when a union claims majority support through signed authorization cards and asks an employer for recognition, potentially allowing recognition without a secret ballot election. In simple terms, Cemex altered what happens after employees attempt to unionize. Under the new standard, once a union presents an employer with authorization cards signed by an apparent majority of employees, the employer must either recognize the union or file a representation- management (RM) petition requesting a secret ballot election within two weeks. If an employer commits any unfair labor practice during the RM period, the NLRB can issue a bargaining order instead of rerunning the election. This new
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