By Dan McCue
Staff Writer

A bill passed by the U.S. House of Representatives and soon to be considered in the Senate would radically change the rules pertaining to union activity in the workplace and could open South Carolina to union activity like it has never seen before, a prominent labor attorney in Columbia said.

The Employee Free Choice Act, which passed in the House in a 214-185 vote Feb. 28, would be a “radical change” in the relationship between employer and employee, said William Floyd, an attorney with Nexsen Pruet LLC.

Not only would it make it much easier for employees to form a union, but it would also stiffen penalties against employers found to discriminate against workers based on their union activities.

The new penalties promulgated in the bill authored by Rep. George Miller,
D-Calif., include requiring employers to pay treble back pay to workers found to have been illegally fired as a result of their union activity, along with fines up to $25,000 per violation.

The EFCA also provides for the arbitration of first contracts if the employer and union fail to reach agreement after a year of bargaining.

Miller wrote and sponsored the legislation because he believes that many employers thwart their employees’ right to organize as detailed in the National Labor Relations Act, he said.

But Floyd disagreed with that assertion.

“This bill is an outgrowth of organized labor’s decline nationally,” he said. “The unions have lost members and their impact in the workplace has been substantially diminished. That’s why, after 70-some-odd years of stability in the system under the NLRA, the AFL-CIO and others are making passage of the EFCA their number one priority.

“Labor law has a rich historical foundation in this country going back to the 1930s; this bill would radically change the table management and labor gather around.”

South Carolina is currently tied with North Carolina with the lowest proportion of union members in the nation. In 2006, of the 1.8 million workers in South Carolina, only 3.3% were members of unions, according to the AFL-CIO.

Molly Hughes, an attorney with Nexsen Pruet’s Charleston office, contends the act is patently unfair because under it, if a majority of workers in a workplace sign cards authorizing a union, the business would be unionized.

This majority sign-up process is already permitted under the NLRA, but only if the employer allows it. Today it’s far more common for them to insist that workers adhere to the time-honored provisions of the act.

Under the current process, at least 30% of a company’s workers must sign cards indicating they want to have a union, which then gives them the right to petition the National Labor Relations Board for an election by secret ballot.

“That’s one reason I think the name of this bill is a misnomer, because in taking away the employee’s privacy, it could subject the employee to pressure from the union,” Hughes said.

Floyd is also concerned about the EFCA’s impact on collective bargaining.

“Right now, so long as you’re bargaining in good faith, you can take the time you need to resolve issues,” he explained. “This bill compresses the bargaining schedule, taking it from the months and years it might take to resolve a complex issue to merely days or months, after which time the matter would have to go through an arbitration panel.

“In effect what you are creating is a situation where the federal government will be deciding very important labor management issues on the local level,” Floyd said.

Since the legislation passed in the House, Floyd has urged business owners to contact their senators and the White House to express their opposition to the measure, he said.

“Beyond that I think employers need to start anticipating what they’ll do if this bill becomes law,” he said.

One thing Hughes has been telling employers is they need to re-emphasize training of the supervisors in the management team in how to deal with union issues. They should also train all employees in what their rights are under the EFCA, the NLRA and applicable state laws.

When it comes to unionizing, all 50 states have laws that generally give employers a right to control their property. What that means is that they have a say in regard to what their employees do while on the clock.

“What these laws say, generally, is that an employer can regulate the time and place of distribution of union-related material, but they can’t outright prohibit it,” Hughes said.

The catch is that employers have to make sure they’re not applying one set of rules to union activity and another set to other activities, such as soliciting for a charitable cause.

“That’s why we always remind our clients that if they’re going to adopt a solicitation distribution policy, it has to be even-handed, applying to union activity, charity-related activity, everything,” she said.

Thirteen Republicans joined 228 Democrats in approving the EFCA in the House. The Senate version of the bill, sponsored by Sen. Ted Kennedy, D-Mass., is expected to face far more opposition.

And President Bush has already vowed to veto the bill if it passes there,. It would be only the second veto he’s issued during his administration.

“The question is whether there are enough votes in Congress to override that veto,” said Floyd, who went on to suggest that’s a real fear for employers.

“The threat this poses to South Carolina is enormous in my opinion,” he said. “Because we’ve had such a long history of having the least union activity in the nation, we’re ripe with new members for these organizations.

“I expect unions would use this new law to establish a presence in South Carolina like never before.”

Dan McCue is a staff writer for the Business Journal. E-mail him at dmccue@charlestonbusiness.com.

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