LEGAL CHANGES IN THE WORKPLACE: Employee Free Choice Act (“EFCA”) and Other New Labor Laws Gary Ingram Jackson Walker, L.L.P.

301 Commerce Street, Suite 2400 Fort, Texas 76102 817-334-7247 Presented to: Roofing Contractors Association of Texas c. 2009

KEY PROVISIONS OF EFCA

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“Card Check” certification (no secret ballot elections) After 90 days of bargaining, a collective bargaining agreement (“CBA”) imposed by an arbitration panel, binding for 2 years Increased employer penalties – mandatory triple back pay for unfair labor practices, employee reinstatement and $20,000 fines

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SIGNIFICANCE OF CARD CHECK CERTIFICATION UNDER EFCA

The National Labor Relations Act (“NLRA”): Neutral on whether employees should be represented by a union Provides a democratic process for employees to vote on union representation If 30% of employees sign an authorization card, an election is scheduled 4-6 week campaign period Culminates in SECRET BALLOT ELECTIONS

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SIGNIFICANCE OF CARD CHECK CERTIFICATION UNDER EFCA

Labor trends: 1945 – 35% of private sector workforce was organized 1980 – 24.7 % 1990 – 17.6 % Presently – 7.4 % Unions won 47.9% of elections in 1980, 50.4% in 1995, 60.4% in 2005, and 59.2% in 2007

SIGNIFICANCE OF CARD CHECK CERTIFICATION UNDER EFCA

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“Card Check” certification: Eliminates or reduces an employer’s ability to “campaign” Eliminates NLRA neutrality Designed to result in union “wins” Designed to increase the number of workers who belong to unions

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SIGNIFICANCE OF MANDATORY CBAS UNDER EFCA

The NLRA is neutral on whether the parties should reach an agreement The NLRA requires good-faith bargaining Fewer than 1/3 of “first time negotiations” produce a CBA in 1 year; 1/3 never produce a CBA

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SIGNIFICANCE OF MANDATORY CBAS UNDER EFCA

Under EFCA, arbitration panels impose CBAs if the parties do not reach an agreement in 90 days De facto elimination of the union’s duty to bargain in good-faith?

All “first time negotiations” will result in a CBA

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SIGNIFICANCE OF MANDATORY CBAS UNDER EFCA

Will the arbitration panel Choose one party’s proposal, or write its own CBA? Consider the economic conditions of the company, the workers’ conditions, the contracts of competitors, etc.?

Impose provisions interfering with the company’s right to manage its workforce?

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SIGNIFICANCE OF MANDATORY CBAS UNDER EFCA

Whatever the panel decides will be binding on the parties for 2 years

SIGNIFICANCE OF INCREASED PENALTY PROVISIONS

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Under the NLRA, remedies include injunctions and optional back pay awards; under EFCA Treble back pay awards against employers are mandatory Fines of up to $20,000 will be imposed against employers for certain practices Penalties against unions are not increased

ORGANIZED LABOR KNOWS THAT EFCA WILL REMEDY ITS HISTORICAL DECLINE

For every 1% increase in unionization in the United States, unions will receive approximately $1 billion in dues

HOW DO UNIONS ORGANIZE NOW?

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“Corporate” Campaigns “Neutrality” Agreements Obtain employee signatures on union membership/authorization cards

WHAT DO “UNION CARDS” LOOK LIKE?

Authorization to UFCW Fill All Blanks I, the undersigned employee of ___________________________________ authorize the United Food & Commercial Workers Union to represent me in collective bargaining. I am employed at: Name of Employee (Please Print) ____________________________________________ Home Address ____________________________________________________________ City _________________________________ State _______ Zip Code _______________ Classification _____________________ Department ___________ Shift _____________ Telephone No. _____________________ DATE ____________________________ SIGNATURE ____________________________

WHAT DO “UNION CARDS” LOOK LIKE?

Page 2 This card will be used to secure recognition and collective bargaining for the purpose of negotiating wages, hours, and working conditions.

YOU HAVE THE RIGHT UNDER FEDERAL LAW TO ORGANIZE AND JOIN A UNION By joining the UFCW you have the support of one of the World’s Largest Unions.

Cost Center ______________________ Div. _____________________________ __________________________________________________________________ (Back)

HOW LONG DOES UNION ORGANIZING LAST?

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Usually 1-12 months (signed union cards are valid for 12 months) Union needs at least 30% of employees to sign cards to get an election Most unions get signatures from more than 50% of the employees before taking additional steps

HOW DO UNIONS OBTAIN SIGNATURES?

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Skilled persuasion tactics by trained organizers •• •• Home visits Telephone calls/e-mails/text messages •• •• Beer busts, picnics, rallies, raffles, etc.

Peer pressure from co-workers/union supporters •• Sometimes by trickery or misinformation

WHAT HAPPENS WHEN ENOUGH CARDS HAVE BEEN SIGNED?

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Union will demand “recognition” by the employer to act as the exclusive bargaining agent for employees Union will offer “card check” options •• •• •• By employer By neutral 3 rd party (e.g., priest) By delivery to foreman/manager If employer declines to voluntarily recognize the union or check the cards, the union can file a petition for an NLRB election

WHAT HAPPENS BEFORE THE ELECTION?

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Employer can provide information about the union and the company in an effort to persuade the employees to see the employer’s viewpoint and to weigh all the facts before voting in the election Most pre-election periods last about six (6) weeks

WHAT HAPPENS AT THE ELECTION?

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The NLRB conducts a secret ballot election and supervises the voting process and counting the ballots Employees vote “Yes” if the want a union to represent them and “No” if they do not Employees are free to vote however they want, regardless of whether they signed a union card or not

WHAT DETERMINES THE OUTCOME OF THE ELECTION?

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The union must receive a majority of the votes cast – a tie vote means the union loses If the union wins the election, the NLRB will “certify” the election results and thereby empower the union to legally act as the employees’ bargaining agent

WHAT HAPPENS IF THE UNION WINS THE ELECTION?

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The “certified” winning union can demand that the employer bargain in good faith to reach an agreement regarding wages, hours, working conditions, and other terms of employment Although required to bargain in good faith, an employer is not obligated to accept the union’s demands The union generally is given 12 months to complete the first-contract negotiations or it will then lose its protected status as exclusive bargaining agent

GENERALLY, WHAT LEGAL LIMITS APPLY TO AN EMPLOYER’S CONDUCT OR STATEMENTS ABOUT THE UNION?

In general, an employer should follow the so called “TIPS” rules which prohibit the following: T I P S threaten employees for supporting or joining a union interrogate employees about union activities or viewpoints promise benefits or changes if employees will drop their union support spying or surveillance (or creating an inference of surveillance) relating to group/union activities

WHAT SHOULD AN EMPLOYER DO NOW TO REDUCE THE RISK OF UNION ORGANIZING?

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Educate managers/supervisors about the EFCA and about what they can say and do Educate employees about the EFCA, about union organizing tactics, and the legal consequences of signing a union card Talk to employees and find out about their concerns before a union organizer does – show them you will LISTEN!!

Evaluate whether supervisors are treating employees fairly and with respect – usually the “hot button” union organizing issue.

OTHER THINGS EMPLOYERS SHOULD DO

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Evaluate whether to change pay, benefits, working conditions – sometimes even small changes can make a big difference – are you “below the market?” Make good on any broken or unkept promises to employees.

Review or adopt “no-solicitation/no-distribution” policies to keep union propaganda out of the workplace.

Try to avoid hiring union “salts” or from unionized sources.

Watch for “stand-offish” or unusual employee behavior or other signs of union organizing.

If not sure what to do, ask for help! Don’t ignore!

OTHER FEDERAL LAW CHANGES

UNION ORGANIZING

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Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers Act (“RESPECT Act”) •• Changes the definition of “supervisor” •• Will allow many current “supervisors” to be unionized

UNION ORGANIZING

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Patriot Employers Act •• Will create tax “incentives” to coerce employers to remain “neutral” in response to union organizing efforts

PAY DISCRIMINATION

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New Ledbetter Fair Pay Act of 2009 •• Increases time limits to file suit •• Increases potential backpay liability •• Increases length of time to keep pay records

PAY DISCRIMINATION

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Paycheck Fairness Act (pending) •• Increases potential damages •• Prohibits employer from retaliating against co-workers who share paycheck information •• Shifts burden of proof to employer to prove pay was not discriminatory

MINIMUM WAGE

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Increases from $6.55 to $7.25/hr. July 24, 2009

OSHA

New rule allows Per-Employee citations for violations of personal protective equipment (safety goggles, hard hats, safety gloves, etc.) regulations

PROPOSED STATE LAW CHANGES

EMPLOYMENT DISCRIMINATION

H.B. 538: Would prohibit discrimination based upon sexual orientation or gender identity or

expression

•• Two recent Texas cases addressed discrimination against transgender females

WORKER’S COMP

H.B. 520: Allows injured employee of a contractor or subcontractor to sue the premises owner who hired the contractor and purchased worker’s comp insurance for the employees (removes worker’s comp insurance shield) ••Would overturn 2007 Texas Supreme Court decision in

Entergy Gulf States v. Summers

ARBITRATION

S.B. 222: Would void mandatory arbitration agreements between an employer and employee (except union arbitration agreements)

HANDGUNS

Legislation allowing handguns to be brought onto employer parking lots is expected to be proposed.