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Attorneys at Law 1 New Jersey Family Leave Benefits Please help yourself to food and drinks Please let us know if the room temperature is too hot or cold Bathrooms are located past the reception desk on the right Please turn OFF your cell phones Please complete and return surveys at the end of the seminar 2 Attorneys at Law 3 Attorneys at Law Employee Free Choice Act: Where It Stands and What It Means to Employers Pat Collins, Esq. David Cassidy, Esq. John Sands, Esq. Attorneys at Law 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.” 5 Attorneys at Law 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/ 6 Why Now? Attorneys at Law American Private Sector Employees Represented by Unions • 1954 – 39.2% (all-time high) • 1973 – 24.2% • 2008 – 7.5% • 2011 - ??? 7 Authorization Cards Attorneys at Law 8 Attorneys at Law Certifying A Union Attorneys at Law Certifying A Union Today 10 Campaign Period Current System Attorneys at Law • 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) 11 Voluntary Recognition/Card Check Attorneys at Law • 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 12 Attorneys at Law Campaign Rules - Employers • Don’t make negative predictions about the effect of the union on business • Don’t question or surveil employees regarding their voting choices or leanings • Don’t offer incentives for voting against unions – Not only includes wages and benefits but any other type of working condition • Don’t hold campaign meetings within 24 hours of balloting • Don’t Discipline, Discharge, Discriminate or Retaliate 13 Attorneys at Law 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 14 Attorneys at Law 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 15 Secret Ballot Attorneys at Law SAMPLE 16 Attorneys at Law The EFCA WAY! Attorneys at Law 18 Authorization Cards Attorneys at Law 19 Privacy? Attorneys at Law 20 Attorneys at Law The Union is in… Now What?? 21 Attorneys at Law Negotiating With The Union Out with the old… In with new… Current labor negotiations under the NLRA Attorneys at Law Proposed changes under the EFCA 23 Attorneys at Law The Negotiation Process Under Current Law • Each negotiation is decided by the parties on a case-bycase 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 can’t be reached, parties are sent to mediation – If mediation doesn’t work, parties are sent to mandatory arbitration • Arbitration – First contract and binding for two years 24 Attorneys at Law The EFCA Proposed Schedule • 10 Days to begin negotiations • 90 Days of negotiation • 30 Days of mediation • Then . . . 25 Attorneys at Law Binding Interest Arbitration • Arbitration decision would be binding for two years, unless parties agree otherwise • Rules to be issued on how it will work 26 Attorneys at Law Arbitration Options • Baseball style – Arbitrator must select one party’s complete offer • Modified Baseball – Arbitrator selects one of the party’s proposal on each subject • Night Baseball – Arbitrator makes a decision and closest offer wins • Carte Blanche – Arbitrator has power to write terms 27 Attorneys at Law ULP Remedies – Ouch! What they are, and the price to pay under current law and EFCA Attorneys at Law 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 29 Attorneys at Law 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 30 Attorneys at Law 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 31 Attorneys at Law Planning for the EFCA How to prepare for the worst case scenario Attorneys at Law Don’t stand PAT! 1. Plan – How to minimize exposure to unionization 2. Analyze – Perform a critical audit of your own vulnerability 3. Train – Pro-actively educate while you still can 33 Attorneys at Law 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 34 Attorneys at Law 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 35 Attorneys at Law 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 36 Attorneys at Law 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 37 Attorneys at Law 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 38 Attorneys at Law 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 39 Attorneys at Law Inform Your Employees? Benefit Risk • Employee is insulted • Employee is by the EFCA and educated and seeks opposes it out the union • Company campaigns first and controls message 40 Attorneys at Law 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 “coworkers” • Employer CAN NOT fire a salt based solely on his union affiliation or organizing activities 41 Attorneys at Law 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 42 Attorneys at Law Will It Pass? Attorneys at Law Political Support "We will pass the Employee Free Choice Act. It's not a matter of if—it'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 44 Attorneys at Law 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 45 Attorneys at Law Questions & Answers Thank you for coming!