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Business Observer Thursday, Mar. 12, 2009 12 years ago

Winds of change

Gulf Coast labor lawyers are warning businesses that the new administration is making it easier for unions to form.

Gulf Coast labor lawyers are warning businesses that the new administration is making it easier for unions to form.

Union organizing will be a lot easier, even in Florida, under the policies of the new president and Congress, Gulf Coast labor attorneys say.

“I encounter the same question over and over, that this is not union country,” says Steve Bernstein, labor lawyer and managing partner with the Tampa office of Fisher & Phillips.

“We have to remember that we haven't had that activity,” Bernstein says. “Organized labor sees Florida as the land of untapped opportunities. I believe Florida is right in the crosshairs now for organized labor.”

Jaime Maurer, labor attorney with Fowler White in Fort Myers, echoes Bernstein. Fowler White labor attorneys are writing a “survival kit” for their Gulf Coast business clients to help them craft the best company policies to deal with the new labor policies coming out of Washington.

“I think, generally speaking, the labor movement is going to be a huge focus,” of the Obama administration, Mauer says.

So what should a business owner do? Begin to huddle with the head of human resources, in-house counsel or another labor law expert to know how to respond if union organizing activity begins.

Writing or emailing your Congress member is always a good idea, Bernstein says.

“In all likelihood, it's coming,” he says. “The time to prepare is now.”

Businesses need to be aware of the do's and don'ts in responding to union organizing efforts, attorneys say.

One component of a new law is a stiffer penalty for companies that aren't in compliance with new labor policies. The fines could be as high as $20,000 for each violation, such as reducing pay, demotions and switching shifts,
Bernstein says.

“There are huge risks for employers,” Mauer says.

New law
The main discussion topic in labor law circles right now is the looming Employee Free Choice Act, a bill making its way through Congress that President Obama has agreed to sign.

The bill does many things, but essentially makes it easier and faster for organizers to hold a union vote.

Currently, the National Labor Relations Board approves a union at a company through a card-check process or secret-ballot election, which is held if more than 30% of employees sign statements asking to be represented by a union.

Under the proposed Free Choice Act, the board would certify a union if a majority of the bargaining unit employees sign cards.

A report by the U.S. House Committee on Education & Labor says the Free Choice Act would allow employees to make their own decision about whether they want to bargain together — to advocate for fairer wages, benefits and working conditions — “without the threat or fear of harassment and retribution and fear of losing their livelihood.”

But they already enjoy that legal right now with the secret ballot, so neither management, other employees or union organizers know how they voted — just like in government elections.

Businesses and other groups have opposed this because it eliminates the secret-ballot union vote, which would allow peer pressure among employees, may add costs and maybe the biggest issue — it would allow for the possibility of threat and harassment by union organizers or managers,

“The Free Choice Act will take 75 years of labor law, in the National Labor Relations Act, for electing unions, and turn it on its head,” Bernstein says.

For example, among the changes is an arbitrator and a deadline, so a vote and a decision on a union can stick, placing a union at a company.

“Obama has been outspoken and believes it would raise wages and help working Americans,” Mauer says.

Lesser known portions of the Free Choice Act would make it harder for employers to bargain at the labor bargaining table. Now, if there is a stalemate, management can just keep the union from forming.

The proposed law calls for a 120-day waiting period, then binding arbitration, when a decision on a union can happen. The bill would give an arbitrator rights to make decisions, such as what a company should pay its employees. “It will definitely mean more unions,” Mauer says. “It is a problem that will face all employers.”

Continual changes
Labor attorneys are also looking beyond the Free Choice Act to the overall and continuing labor policies of the Obama administration, which was given money and time by labor unions.

Vice President Joe Biden embraced organized labor March 5 at the A.F.L.-C.I.O.'s executive council meeting in Miami Beach. Biden thanked the presidents of several unions, including the painters, firefighters, teachers and mine workers, for campaigning with him in various states.

He made it clear that the Obama administration believes economic growth will happen when middle-class Americans get jobs building bridges, windmills, highways and other infrastructure projects.

“It is a very interesting time,” Bernstein says. “In monitoring my email, labor law seems to be changing by the hour. I've been doing this 19 years and I don't remember a time where the ground was shifting so rapidly. I don't know how many more surprises to expect.”

Bernstein said that business people are very good at running their companies but can be naïve about what a union can do.

Political backers of strengthening unions are able to use the economic crisis to pursue that agenda.

New laws and policies will be designed to help organizers get a vote among workers and making it stand. Eventually, in six weeks, if a union can secure a majority of signatures, a secret-ballot won't be necessary.

“Employees will wake up the next day and find they are represented by a union,” Bernstein says.

Obama has also appointed union-friendly people to cabinet posts such as Department of Labor Secretary Hilda Solis, the daughter of a union organizer.

“This trend is not business friendly,” Bernstein says. “She will be overseeing wage-hour laws.”

Other bills being proposed for Congress include some requiring employers to talk about flex time, to expand workplace safety and create standing arbitration agreements. One upcoming bill will punish employers for classifying workers as independent contractors.

Right to Work
Florida's status as a right-to-work state means that employees do not have to join a union. But if unions win the right to represent workers, that generally doesn't help employers, Bernstein says.

“No one is denying that this administration is pro-labor,” he says. “Proponents say unions have been down and out for so long that this is like their last stand.”

Nationwide only 7.7% of Americans belong to unions among private companies. After World War II, 36% were in unions.

In Florida and elsewhere, many companies have been able to convince employees that they would not gain anything from joining a union.

“That's why unions have struggled,” Bernstein says. “They haven't been able to craft a message. They know without a good message, a reason for being, they are in trouble.”

So they are turning to lawmakers.

“They see this bill as a panacea,” Bernstein says.


Industry: Labor law
Tend: Union-friendly control of D.C. means making it easier for unions to organize.
Key: Making businesses aware of potential impacts of labor law changes.

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