By MICHAEL  V.  ABCARIAN

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(May  05, 2008) In June 2007, one of the most catastrophically conceived labor laws of all time—the curiously titled Employee Free Choice Act—stalled in Congress. Many will remember this as the law that would have replaced National Labor Relations Board secret-ballot elections with totally unsupervised authorization conducted by unions themselves. Make no mistake about it, the purpose of EFCA was to make it easier for unions to become the collective bargaining representatives for an increasing number of employees.

The fact that EFCA did not become law in 2007 probably caused many employers to breathe a sigh of relief. But the battle is only beginning, and concerned restaurant and foodservice employers should keep vigilant watch on what may yet become the most dramatic change in the labor relations landscape to appear since passage of the National Labor Relations Act in 1935.

Under current law, unions usually must win a secret-ballot election conducted by the NLRB. NLRB elections are designed to ensure truly free employee choice and eliminate coercive pressure on affected workers who will vote “yes” or “no” on whether they wish to be represented by unions. However, in recent times, unions have not fared well in NLRB elections.

EFCA would have eliminated secret-ballot elections and replaced them with “authorization cards” that unions would obtain through unsupervised dialog with employees. EFCA was not concerned with pressure union supporters might apply to get those cards signed by employees. And, if enough employees signed such cards, the union would be “in” and the employer would be required to immediately begin negotiating for a labor contract. As experienced labor relations practitioners know, the process of negotiating a first labor contract can be complex and daunting—driven by hundreds of rules developed by the NLRB and the courts during the past seven decades. For employers who violate those rules, the result can be disastrous.

While Republican resistance kept EFCA from becoming law in 2007, Big Labor and congressional supporters have made clear that some form of “card-check” law is a high-priority legislative item for the next administration. EFCA, or a statute with a similar purpose, stands a strong possibility of becoming the law of the land in the near future. While replacement of secret-ballot elections with compulsory “card-check” recognition would be a dramatic departure from decades of labor relations practice in this country, other proposed features of EFCA represent equally radical change.

For example, EFCA also would impose the requirement of binding arbitration in the event a first labor contract could not quickly be agreed upon. In effect, a company that did not agree to a labor contract within 90 days of beginning negotiations would be forced to have its labor contract rights determined by an arbitrator who might know little to nothing about the employer’s business. Stiff monetary penalties also were required by EFCA for employers found to have engaged in “unfair labor practices.”

EFCA is the Holy Grail for union relevance, and the leisure and hospitality industries are target-rich environments for unionization. But how did our country come to a time and place where dispensation of one of our most cherished legal processes, the secret-ballot election, is being considered at the federal legislative level?

Trade unionism in this country saw its zenith in the economic boom that followed World War II. Unions decried corporate wealth at the expense of workers who created it. Pundits foretold that American business was at the cusp of unprecedented expansion and profit. A “share the wealth” view of the world hardly seemed unfair. It was the “golden age” of trade unionism, and promises of increased wages and benefits brought hundreds of thousands of workers into union membership.

However, by the late 1960s things began changing. Older economic models were becoming less meaningful with the globalization of many industries, along with rapid advances in technology and manufacturing processes. Employer interest in retaining or restoring union-free status became a high priority. Union petitions for representation rights were met with increasingly fierce countercampaigns, and union successes in NLRB elections began declining. The struggles between organized labor and employers were often complex and wrenching, sometimes resulting in violent strikes, plant closures and even bet-the-company legal disputes.

By the 1980s, because of these and other circumstances, many of this country’s unions were in decline. Old organizing tactics were no longer working. Strikes were less prevalent and often ineffective. The percentage of unionized American workers in the private sector continued to suffer declines. Unions that were specialized by craft found themselves considering affiliation with others from dissimilar industries—exalting size over purity of craft for the sake of survival and clout at the bargaining table. An example of such was the amalgamation of the Needle Trades Union, or UNITE, with the Hotel and Restaurant Employees Union, or HERE. Although declines in union membership have stabilized during the past several years, unions now represent less than 10 percent of this country’s private-sector workforce.

Not long ago, a conglomerate of several unions disaffiliated from the AFL-CIO, believing that new and effective organizing could reinvigorate trade unionism in this country. The Service Employees International Union, or SEIU, has been at the forefront of these efforts. To secure new labor contract negotiation rights, SEIU and like-minded unions are using very different techniques than their counterparts.

“Corporate campaigns” have become prevalent as a mechanism for pressuring employers. In corporate campaigns, unions use Internet, broadcast and print communication with the public and those with whom the employer does business. In effect, public pressure becomes the tool for “persuading” the employer to accede to the objectives of organized labor. Use of corporate campaigns is accelerating in this country, and the restaurant and foodservice industry is no exception. Other tactics include so-called “neutrality” agreements whereby employers agree not to oppose future unionization efforts in exchange for being excused from the cost and frustration of protracted organizational campaigns.

EFCA may have stalled in 2007, but Big Labor’s battle to make unionization easier is far from over. With the possibility of a Democratic administration on the horizon, passage of a revamped EFCA is not only probable, but also highly likely. For those in the foodservice industry, expanded union density driven by legislative fiat will undoubtedly have profoundly complex and unsettling implications for years to come.

Michael V. Abcarian is managing partner of Fisher & Phillips LLP in Dallas, a law firm of more than 200 lawyers who represent employers in all phases of labor and employment law through 19 offices across the country.

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