Labor

1
Labor Employment

• EMPLOYEE FREE CHOICE ACT
• Amendments to the National Labor Relations Act

Peter N. Kirsanow [phone]
2
Agenda

• Employee Free Choice Act
• Healthy Families Act
• RESPECT Act
• Repeal of Section 14(b) Right to Work
• NLRB Developments
• Lilly Ledbetter Paycheck Fairness Act

3
The Employee Free Choice Act (EFCA) is the most
profound change in labor law in 70 years.

• EFCAs four major provisions.
• Card Check
• Mandatory Arbitration
• Injunctive Relief
• Enhanced Unfair Labor Practice Charge Penalties

4
Card Check

• Presently.
• The Board will conduct a secret-ballot election
  if 30 of bargaining unit employees sign a
  representation petition.
• Median 39 days between presentation of petition
  and the conduct of an election.
• 501vote yes for the union to win.
• EFCA.
• If 50 1 of bargaining unit employees sign a
  cardno secret-ballot election.
• Unions spend up to a year organizing and get
  85-90 of cards signed.

5
(No Transcript)
6
(No Transcript)
7
Mandatory Arbitration

• Presently.
• Parties must bargain in good faith.
• No time limit no one can compel a party to agree
  to a proposal.
• Mandatory arbitration.
• Parties must meet and bargain collectively after
  union demand.
• If no agreement after 90 days, either party can
  request mediation by FMCS.
• If no agreement within 120 days, the matter is
  submitted to an FMCS-appointed arbitration panel.

8
Mandatory Arbitration

• EFCA provides no guidance as to the nature of
  arbitration arbitrators may have broad authority
  to impose contract terms.
• Neither party may reject the contract.
• The arbitrators order is binding for two years.

9
Enhanced Penalties

• Currently, the Board is only authorized to order
  reinstatement and back pay.
• EFCA authorizes the Board to impose penalties of
  up to 20,000 for each violation of 8(a)(1)
  during an organizing campaign or the negotiation
  of a first contract.
• 20,000 for willful or repeated violations of
  8(a)(1).
• Treble damages for 8(a)(3) violations during
  organizational campaigns or first contracts.

10
Injunctive Relief

• Under 10(l), the Board will seek injunctive
  relief where there is reasonable cause that
  during the organizational campaign or the first
  contract, the employer
• Discharged or discriminated against or threatened
  to discharge or discriminate against an employee.
• Violated 8(a)(1) in a manner that significantly
  interfered with, restrained or coerced an
  employee in the exercise of Section 7 rights.

11
Legislative Profile

• EFCA is Labors 1 Priority in the 111th Congress
• President Obama was a co-sponsor
• Two weeks ago, President Obama promised 100 top
  labor leaders during a closed door meeting in
  Miami We will pass the Employee Free Choice
  Act.
• Cloture Vote Margins
• 58 Democratic Senators
• AFL-CIO President Sweeney We wouldnt be
  surprised if there are attempts to amend this
  bill.
• Senator Specter
• Possible amendments

12
Legislative Profile, Timing and Amendments

• Introduced on Tuesday in House and Senate.
• Amendments.
• Quickie elections (RJ petitions).
• Equal access provision.
• Elimination of mandatory arbitration.
• Lengthening of 1st contract negotiation period.
• 55-60 threshold for union card certification.
• Card check decertification.

13
Labors Strategy

• SEIU 50 Million to, inter alia, pass EFCA by
  summer
• YouTube - Scary Movie - The Horror of the
  Employee Free Choice Act
• National Campaign
• Higher Wages
• Job Security
• Civil Rights
• True, Uncoerced Choice
• Keep Right-to-Work State Senators in the fold
• Target 3-4 Republicans

14
Managements Response 4 Prongs

• Public Messaging
• Secret Ballot v. Coerced Choice
• Job Killer
• Legislative
• Preserve Cloture Margin
• Industry Rulemaking
• Individual Company Preparations

15
The Employee Free Choice Act (EFCA) is the most
profound change in labor law in 70 years.

• The legislation is called the Employee Free
  Choice Act, and I am sad to say it runs counter
  to ideals that were once at the core of the labor
  movement. Instead of providing a voice for the
  unheard, EFCA risks silencing those who would
  speak . . . Under EFCA, workers could lose the
  freedom to express their will in private, the
  right to make a decision without anyone peering
  over their shoulder, free from fear or reprisal.
• - Former Senator George McGovern (D-SD)

16
The Employee Free Choice Act

• More on Card Check
• We feel that the secret ballot is absolutely
  necessary in order to ensure that workers are not
  intimidated into voting for a union they might
  not otherwise choose.

Representative George Miller in a 2001 letter
to Mexican governmental authorities.
In 2007, Representative Mill
voted in favor of the Employee Free Choice Act.
17
Secret Ballot v. Card Check

• Coercion from open-ballot voting
• Everyone knows who signed a cardand who did not

Including this guy
18
Empirical Assessment of the Employee Free Choice
Act Dr. Layne Farrar

• SEIU President Andy Stern predicts 1.5 million
  new members in first year alone.
• 600,000 jobs lost
• 10 increase in organized workers results in 5.4
  million unemployed or 3.5 increase in
  unemployment

19
Union v. Nonunion Wages (2004)
20
Rule Making

• The National Labor Relations Board will
  promulgate rules governing the validity of
  authorization cards, the standards for RM
  petitions, standards for decertification
  petitions during the Dana/Metaldyne window
  period, lengthening the window period, etc.
• Industry and employer-specific rulemaking
  petitions.

21
Individual Employer Response

• EFCA team selection.
• Coordinating team.
• Facility communication team.
• Develop Initial communication plan.
• Vulnerability assessment.
• Geographic analysis.
• Employee satisfaction assessment.
• Facility communications.

22
Communication Training

• Manager/Supervisor training.
• Implementation of communication plan.
• Ongoing communication strategy (the perpetual
  plan).

23
Post-Certification

• Rapid response plan.
• Union certification response.
• Mediation plan.
• Mandatory arbitration plan.

24
Team Selection

• Identify C Level Coordinating Team
• Representatives from Senior Management, Human
  Resources, Operations, Legal Counsel
• Identify Facility Communication Teams
• For each facility a group should be identified
  which will deliver information to employees

25
Develop Initial Communication Plan

• Assess vulnerability at each facility
• Climate Survey
• Manager/Supervisor Review
• Analysis of Geographic Area
• Extent of union organization
• Identify active union
• Wage/benefit levels of comparable employers
• Identify Existing Sources of Employee
  Dissatisfaction
• Structure communication plan for each facility
• Determine communication plan themes and timetable
• Prepare oral communications
• Prepare written communications

26
Train Facility Communication Teams

• Substance to be communicated
• Methods of communication
• Limits of lawful communications

27
Train Facility Managers/Supervisors

• How unions organize
• Warning signs
• Proper response

28
Implement Initial Communication Plan

• Disseminate message to employees through facility
  communication team
• Consider corrective action to address areas of
  dissatisfaction
• Design ongoing communication strategy (The
  Perpetual Plan)
• Identify themes
• Determine methods and frequency of communications
• Periodic assessment

29
Rapid Response Plan

• Each facility communication team should have
  rapid response program in the event specific
  organizing activity is discovered
• Initial written communications ready for
  immediate distribution
• Outlines for employee meetings/discussions
• Plan for assessment of existing conditions
• Be able to implement Rapid Response Plan within
  twenty-four (24) hours

30
Union Certification Response

• Proactively prepare a response to a union being
  certified
• Develop initial strategic options for possible
  implementation in response to certification
• Develop preliminary approach to bargaining with
• Decertification information
• Mediation Plan
• Prepare mediation strategies
• Assess alternate contract proposals
• Mandatory Arbitration Plan
• Prepare for arbitration
• Prepare relevant personnel for implementation

31
Opposing Union Organization Efforts

• Elevator Speech
• Theres NO secret ballot election
• An arbitrator may have final say on your pay and
  benefits NO Voting
• Unknown impact on operations here
• Dont sign a card

32
Unlawful Actions Employers Must Avoid

• Employers Cannot Lawfully
• T Threaten
• I Interrogate
• P Promise
• S Spy

33

• PREPARE IMMEDIATELY.

34
RESPECT Act

• Organization of Supervisors
• Amend Section 2(11) to remove assign and
  responsibility to direct

35
Healthy Families Act

• Paid Sick Leave
• Three Day Paid Vacation

36
Repeal of 14(b)

• Right-to-Work

37
NLRB Developments

• Obama Board
• Oakwood Health Care
• Dana/Metaldyne
• Weingarten

38
Lilly Ledbetter Paycheck Fairness Act

• Evergreen Right to Sue