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• Please help yourself to food and drinks
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• Please complete and return surveys at the end of
  the seminar

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Employee Free Choice Act Where It Stands and
What It Means to Employers
Pat Collins, Esq. David Cassidy, Esq. John Sands,
Esq.
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WHAT IS THE EFCA?

• An Act to amend the National Labor Relations Act
  to establish an efficient system to enable
  employees to form, join, or assist labor
  organizations, to provide for mandatory
  injunctions for unfair labor practices during
  organizing efforts, and for other purposes.

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EFCA in a Nutshell

• Gives workers the choice of whether to form a
  union through majority sign-up or through the
  National Labor Relations Board election process
• Guarantees a first union contract through
  mediation and arbitration
• Strengthens penalties for violations against
  workers who are trying to organize or negotiate a
  first contract
• http//edlabor.house.gov/employee-free-choice-act
  efca/

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Why Now?

• American Private Sector Employees Represented by
  Unions
• 1954 39.2 (all-time high)
• 1973 24.2
• 2008 7.5
• 2011 - ???

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Authorization Cards
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Certifying A Union
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Certifying A Union Today
Petition
Campaign
Hearing
Election
Objections
Democracy!!!
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Campaign PeriodCurrent System

• Authorization cards from 30 petition for
  election
• Employer provides union with roster of eligible
  employees
• Election date no less than 10 days from the day
  the roster was released
• 2007 median period - 39 days from the date the
  petition was filed (NJ 42 Days)

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Voluntary Recognition/Card Check

• Employer can agree to voluntarily recognize a
  union via a card check
• 51 permits the union to be voluntarily
  recognized by the employer
• Employer may reject voluntary card check and
  force secret ballot

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Campaign Rules - Employers

• Dont make negative predictions about the effect
  of the union on business
• Dont question or surveil employees regarding
  their voting choices or leanings
• Dont offer incentives for voting against unions
• Not only includes wages and benefits but any
  other type of working condition
• Dont hold campaign meetings within 24 hours of
  balloting
• Dont Discipline, Discharge, Discriminate or
  Retaliate

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Different Rules for the Unions

• Unions may
• Promise higher wages/benefits/changes without
  accountability
• Contact employees at their homes and repeatedly
  inquire about their vote using union members or
  co-employees

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Secret Ballot Elections

• Conducted by NLRB
• Represented at the election by an observer
• Union must receive a majority of the votes cast
• Majority of voters Union certified as exclusive
  bargaining representative for the unit
• No Majority Certified as no union
• Either way, no election in that unit for at least
  one year from the date of election results

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Secret Ballot
S A M P L E
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The EFCA WAY!
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Involuntary Card Check

Union
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Authorization Cards
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Privacy?
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The Union is in
Now What??
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Negotiating With The Union
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Out with the oldIn with new
Current labor negotiations under the NLRA
Proposed changes under the EFCA
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The Negotiation Process

• Under Current Law
• Each negotiation is decided by the parties on a
  case-by-case basis
• There is no requirement to reach a final
  resolution
• Both sides have leverage
• Employer Last, best contract offer and lock
  outs
• Union Strike, picket and handbill

• Under the EFCA
• Resolution WILL be reached
• If an agreement cant be reached, parties are
  sent to mediation
• If mediation doesnt work, parties are sent to
  mandatory arbitration
• Arbitration
• First contract and binding for two years

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The EFCA Proposed Schedule

• 10 Days to begin negotiations
• 90 Days of negotiation
• 30 Days of mediation
• Then . . .

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Binding Interest Arbitration

• Arbitration decision would be binding for two
  years, unless parties agree otherwise
• Rules to be issued on how it will work

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Arbitration Options

• Baseball style Arbitrator must select one
  partys complete offer
• Modified Baseball Arbitrator selects one of the
  partys proposal on each subject
• Night Baseball Arbitrator makes a decision and
  closest offer wins
• Carte Blanche Arbitrator has power to write
  terms

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ULP Remedies Ouch!

• What they are, and the price to pay under current
  law and EFCA

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Employer Unfair Labor Practices

• Interfere/restrain/coerce employees in exercising
  their rights to engage in concerted activity or
  union activity
• Dominate or interfere with formation or
  administration of union
• Discriminate against employees based on union
  actions
• Includes filing charges or taking part in a
  proceeding for the NLRB
• Refusal to bargain with the lawful representative

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The ULP Process

• File a charge with the NLRB
• Any employee may file a charge
• General Counsel of NLRB determines whether to
  issue a complaint
• Interim Injunctive relief available
• Hearing and Decision (or Settlement)
• General Counsel prosecutes the case before an
  Administrative Law Judge
• Appeal to Federal Court

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Penalties for Employers

• Current Penalties
• Remedial back pay and reinstatement
• Possible Injunctions
• Posting Requirements
• New Elections
• Bargaining Orders
• Extreme cases only
• Priority granted to allegations of ULP by the
  Union

• EFCA Penalties
• In addition to previous remedies
• Treble Back Pay
• Mandatory Injunctions
• Civil Damages
• 20K per violation
• No change in remedies against Unions
• Provisions grant priority to allegations made by
  unions and employees against employers

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Planning for the EFCA

• How to prepare for the
• worst case scenario

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Dont stand PAT!

• Plan
• How to minimize exposure to unionization
• Analyze
• Perform a critical audit of your own
  vulnerability
• Train
• Pro-actively educate while you still can

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Plan

• Passive approach No approach
• Speak NOW or Forever Hold Your Peace
• Explain to Company Leaders how the EFCA will
  impact your Company
• A union may be in place literally before you know
  it

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Analyze

• Perform a self-audit to determine if you are
  really vulnerable
• Industry
• Wages/Benefits
• Employee morale
• Union activity in the area
• Supervisor competence
• Communication methods

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Leadership

• The best union organizer is a bad manager
• Poor leadership (NOT pay or benefits) is the
  primary issue that leads to unionization
• Employers have the most power to remedy poor
  leadership

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Policies and Practices

• Policies
• Is your handbook written in plain language?
• Are your policies comprehensive?
• At Will employees?

• Hiring Practices
• Train Managers on how to hire
• Hire from positive sources

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Train Your Managers

• Train you managers to focus on employee relations
• The primary reason given for unionization is
  frustration with supervisors
• Teach supervisors
• What leads to unions and how to avoid them
• How to spot early signs of unionization
• What to say and what NOT to say

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Make Sure Your Voice Is Heard

• Work with trade groups and other organizations to
  lobby against the EFCA
• U.S. Chamber of Commerce and Coalition for a
  Democratic Workplace already have campaigns in
  place
• Communicate your position to local and national
  politicians, including senators
• Write letters to editors of local newspapers and
  find ways to promote public awareness

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Inform Your Employees?

• Benefit
• Employee is insulted by the EFCA and opposes it
• Company campaigns first and controls message

• Risk
• Employee is educated and seeks out the union

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A Word On Salts

• A Salt is an employee of the Union who attempts
  to get hired by the employer
• Primary goal is to unionize co-workers
• Employer CAN NOT fire a salt based solely on his
  union affiliation or organizing activities

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Contingency Planning

• Create a rapid response communication plan
• Develop a Ready to Go Campaign that can be
  launched if you learn of union activity
• Be ready to train managers on TIPS

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Will It Pass?
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Political Support

• "We will pass the Employee Free Choice Act. It's
  not a matter of ifit's a matter of when. We may
  have to wait for the next President to sign it,
  but we will get this thing done."
• Barack Obama, 3/4/07

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Will it Pass?

• The bill passed unchanged through the House of
  Representatives
• The Bill has not been offered to the Senate for a
  vote at this time
• The President is a co-sponsor of the Bill and
  will sign the Bill if it comes to his desk

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Questions Answers

• Thank you for coming!