Workforce: Managing Intense Labor Forces

April 1, 2009
Prepare for upcoming regulatory changes.

As this article is being written, the heated saga of the Employee Free Choice Act (EFCA) continues. On March 10, Rep. George Miller (D-Calif.) and Sen. Tom Harkin (D-Iowa) introduced EFCA, also called the card-check bill, to Congress. The measure was previously introduced in 2007 and passed the House but failed in the Senate.

The controversy centers on three key provisions, all of which would make it easier for employees to form unions. First, the bill provides for certification of a union if the National Labor Relations Board (NLRB) finds that a majority (50% plus one) of employees sign authorization cards. Although the option of a secret-ballot certification vote remains, the bill would make it illegal for a company to order it. Second, EFCA would require federal mediation of a contract if an agreement is not reached within 90 days. If, after 30 days of federal mediation, an agreement still does not exist, the dispute would then be referred to arbitration. The results of the arbitration would be binding for two years. And, third, cardcheck legislation would increase penalties for employers that violate union organizing rules.

At press time, the fate of EFCA (H.R. 1409, S. 560) was still uncertain. Most expected an easy ride through the House but a rougher journey through the Senate. When Sen. Arlen Specter (R-Pa.) expressed his opposition, groups such as the National Association of Manufacturers and United Fresh Produce Association applauded since he had supported the legislation in the last Congress. But the battle was far from over.

Scores of business associations, as well as organizations representing labor groups, have jumped into the ring. Punches from both sides are fierce. Each group predicts certain disaster if the opposition prevails.

The reality is less extreme, however, and supervisors of material handling operations should resist the urge to react impulsively based on negative rhetoric.

A more sensible option is developing a plan of action that reduces vulnerability to labor-related problems. Lost productivity, increased turnover and even litigation and penalties may be avoided by carefully reviewing and updating policies and procedures, educating supervisors and supporting a work environment that hinges on open communication, fairness and teamwork.

Without or without EFCA, material handling professionals will likely be more vulnerable to labor-related issues. In the short time since his inauguration, President Obama has already signed three executive orders affecting federal contractors. Two of the three protect organizing rights.

And, businesses will likely have more to worry about than unions. The Obama Administration is working on a variety of new legislative initiatives relating to immigration, healthcare, discrimination and compensation. (See the sidebar, “Legislative Update From the Hill,” for more.)

According to D. Albert Brannen and Tracy L. Moon Jr., partners at Fisher and Phillips LLP, an Atlantabased law firm that represents employers in labor, employment, civil rights, employee benefits and business immigration matters, there’s no single approach that prepares every operation for potential changes. Each company must analyze its own workforce, industry, location and resources to develop its own plan.

However, Brannen and Moon offer three measures any employer can take right now:

• Update policies. Review and update problemsolving or grievance procedures, equal-employment opportunity and anti-harassment policies, solicitation and distribution guidelines as well as bulletin-board and electronic communication policies. Ensure all policies are applied evenly across the workforce.

• Assess vulnerabilities. Identify and resolve legitimate employee concerns and develop a long-term plan to address complaints involving occupational hazards, compensation and working conditions.

• Educate and communicate. Support productive labor relations by communicating with employees openly, stressing the importance of safety, educating supervisors about hiring procedures and encouraging teamwork and camaraderie. In addition, keep pay and benefits competitive and project a positive image to the community.

It won’t be easy to manage labor relations in the coming years, but the sky isn’t falling. A bit of preparation and some rational measures can help material handling professionals manage the intense forces of change.

Editor’s Note: D. Albert Brannen or Tracy L. Moon Jr. can be reached at [email protected] or [email protected].

Legislative Update From the Hill
Here’s just a sampling of legislative initiatives, in addition to EFCA, that could become—or already are—federal laws. Each of them affects employees working in material handling operations and the professionals who supervise them.

Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act
Narrows the definition of “supervisor” under the National Labor Relations Act, thereby expanding the number of employees eligible for unionization and limiting an employer’s ability to use supervisors to communicate anti-union sentiments to employees.

Paycheck Fairness Act
Amends the Equal Pay Act of 1963 to increase burden of proof on employers regarding unequal pay and prohibit retaliation against workers who share compensation information.

Fair Pay Restoration Act
Gives employees more time to file charges of pay discrimination. Under current law, workers must file complaints within 180 days after the alleged discrimination takes place.

Family Medical Leave Act (FMLA) changes
Expands the FMLA to cover businesses with 25 or more employees and allows leave for more purposes. This measure was effective on Jan. 16.

Working Families Flexibility Act
Gives employees the right to request modifications in work hours, schedule or location.

Illegal Immigration Enforcement and Social Security Protection Act
Increases penalties for employers that knowingly hire illegal aliens or fail to verify employment eligibility.

ADA (Americans with Disabilities) Restoration Act
Overturns previous Supreme Court decisions limiting coverage under ADA.

Minimum Wage
Obama intends to raise the minimum wage to $9.50 per hour by 2011.

Sources: Littler Mendelson law firm ( and

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