3-09 B VIEW - Mobile Chamber of Commerce

It is undeniable that collective
bargaining obligations and union
agreements impose significant limitations
on employers’ abilities to operate with
maximum efficiency. So much so, it is no
wonder that most employers desire to
remain union-free.
Although most employers recognize that
successful union-avoidance efforts involve
more than last-minute speeches and letters
to employees concerning the consequences
and disadvantages of unionization, many
are justifiably reluctant to initiate the
education efforts before union organizing
activities actually begin. The only way
employees will know the disadvantages and
costs of unionization is from what their
employers provide, and there are significant
efforts by organized labor to limit employer
communications.
Under current law, employees hear from
both parties about the pros and cons of
union representation before they vote.
However, organized labor has been
persistent in its efforts to make it harder for
employers to educate employees about
unionization since the National Labor
Relations Act was enacted in 1935. The
most recent effort, the so-called “Employee
Free Choice Act” (EFCA), would allow
unions to be certified if a majority of
employees in a bargaining unit signed
authorization cards, thus avoiding not only
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Working Without Unions
By Frank McRight, Burr & Forman LLP
the government-supervised secret ballot
process, but also the six-week or so
education period before the election.
Fortunately, the card-check procedure of
the EFCA had a number of serious flaws,
which became visible during public debate.
Now, less than 60 senators appear prepared
to vote to break a
Republican-led
filibuster of that
legislation. Even so,
various legislative
compromises have
been suggested to
assist organized labor
in the unionization
process, including
a mail-in ballot
procedure, a
substantial
shortening of the
campaign period,
the elimination
of so-called captiveaudience
speeches by employers, and
allowing unions access to company
worksites for organizing activities.
Other than the secret-ballot process,
such modified legislation may also
incorporate some of the original provisions
of the EFCA, including arbitration of the
first contract’s terms, triple back-pay awards
and increased civil penalties. In addition to
Two Locations to Serve You
The only way employees
will know the disadvantages
and costs of unionization
is from what their
employers provide,
and there are significant
efforts by organized
labor to limit employer
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Phone: 607-6378
Fax: 607-6379
communications.
22 9.09 | The Business View | MoBiLE AREA ChAMBER of CoMMERCE
proposed legislative changes, organized
labor is also counting on President Barack
Obama’s appointments of new members to
the National Labor Relations Board to
reverse rulings, which unions contend have
hampered their efforts to organize workers.
Although the extent and nature of such
legislative and
administrative
changes cannot be
predicted, employers
must be prepared to
operate in an
environment that
limits employer
opportunities to resist
unionization. At a
minimum, those
preparations should
include initiation and
acceleration of
union-avoidance
education.
Alabama
employers should also recognize that while
the location of world-class manufacturing
facilities in our state is a blessing, it also has
resulted in Alabama workers being targeted
by unions to replace the millions of dollars
in lost dues when unionized plants in other
parts of the country fell by the wayside.
Alabama businesses are not alone in
having reason to worry. Shortly after
President Obama recommitted his
administration to the passage of the EFCA,
a noted economist predicted that the
enactment of that legislation would
accelerate significantly the transfer of
manufacturing jobs abroad. Since
globalization of that sector of our economy
is one of the reasons for the decline of
union membership in this country, it is
predictable that additional unionization of
manufacturing jobs would cause a further
loss of well-paying blue-collar jobs that
have provided many workers a bridge to
middle class America.
If our political leaders are truly intent
on finding solutions to problems in this
area, they would be wise to look beyond
such constituent-driven proposals such as
the EFCA, or anything similar. And, of
course, they likely will act on that wisdom
only if those whose interests are at stake
make the effort to let them know how we
stand.
Frank McRight practices with Burr & Forman LLP.
For more than 40 years he has represented management
clients in all areas of labor and employment law. McRight
is a Fellow in the College of Labor and Employment
Lawyers. He is a former chairman of the Business Council
of Alabama, the Mobile Area Chamber and Leadership
Alabama.
Burr & Forman LLP has offices in Mobile,
Birmingham, Montgomery, Atlanta, Nashville, Jackson,
Miss., and central Florida. He can be reached at 345-8244
or fmcright@burr.com.