Download Preparing for the Employee Free Choice Act (EFCA)

GREATER VALLEY FORGE
HUMAN RESOURCES ASSOCIATION
GOVERNMENTAL AND LEGISLATIVE
COMMITTEE
MAY 19, 2009
Preparing for the Employee Free Choice Act (“EFCA”)
Copyright: © 2009 Jackson Lewis LLP
Maria L. Petrillo
Jackson Lewis LLP
Brian P. Kirby
Brian P. Kirby Law Offices
James A. Geier
Human Capital Consulting
Partners LLC
Michael Giantomaso
Aker Philadelphia
Shipyard
Today’s Program
The Perfect Storm
•
Economy
•
The resurgent labor movement
•
Politics
The National Labor Relations Act Today
•
Organizing process
•
Free speech rights/restrictions
•
“Make Whole” Unfair Labor Practice Remedies
The Employee Free Choice Act (“EFCA”)
•
Revised Organizing Process: No Election or Election Campaign
•
Enhanced Unfair Labor Practice Penalties for Employers
•
Collective Bargaining Timeframes and Mandatory Arbitration
•
Winners and Losers
Steps to Prepare for EFCA
2
The Perfect Storm
The Economy
•
Market down
•
Job insecurity up
“State of the Unions”
•
Steady decline in membership
•
Fewer NLRB supervised elections
“Change To Win” breaks from AFL-CIO (2006)
•
Political Environment
•
President Barack Obama
•
Larger democratic majority in Senate
•
Labor’s contributions and expectations
3
“State of the Unions”
Percentage of Unionized U.S. Workforce – Private Sector
40
35
30
25
20
15
10
5
0
1935
1945
1955
1965
1975
1985
1995
2007
4
THE NATIONAL LABOR
RELATIONS ACT TODAY
National Labor Relations Act (NLRA) Today
Current “Road to Unionization”
• Union solicitation of support (via signed cards)
• Petition for election filed with NLRB (30% or more
required; unions normally won’t file unless 50 - 75%)
• Employer communications under Section 8(c)
• Secret-ballot election
• Good faith negotiations
Organizing
Petition
Campaign
Free Speech
Election
Post
Election
6
National Labor Relations Act (NLRA) Today
Union Certification
• Can occur voluntarily through “card check recognition”
(majority required)
7
The National Labor Relations Act (NLRA) Today
Union Certification (cont’d)
•NLRB-supervised secret
ballot election is the norm
•“Card check recognition”
optional/rare; employee
challenge can force election
8
National Labor Relations Act (NLRA) Today
Union Certification (Cont’d)
• National Labor Relations Board supervised secret ballot
election – private vote
9
Employer Free Speech Rights Under NLRA Today
Section 8(c)
“The expressing of any views, argument, or
opinion, or the dissemination thereof, whether
in written, printed, graphic or visual form, shall
not constitute or be evidence of an unfair labor
practice…”
---- National Labor Relations Act
10
Free Speech Rights Under NLRA
YOU MAY SHARE:
•Facts
•Opinions
•Examples/Experiences
•
Okay to initiate conversation
•
Not in management office
11
And a Few Limitations:
•T
hreats
•I
nterrogation
•P
romises/bribes
•S
pying/surveillance
Company action
that is unlawful
12
National Labor Relations Act (NLRA) Today
Employer Penalties For Unlawful
Discharge
• Designed to restore status quo
• Notice posting
• Reinstatement with Back Pay
• No Fines
• Injunction
13
National Labor Relations Act (NLRA) Today
Collective Bargaining
• Mutual obligation to bargain in good faith
• No obligation to agree; sometimes no contract
• No time deadlines for “good faith”
negotiations; can be protracted
• Unit employees have right to vote upon and
ratify negotiated contract terms
14
EFCA:
What is it?
How does it change
things?
National Labor Relations Act (NLRA) After EFCA
Organizing
Petition
Election
Bargaining
Mediation
Arbitration
National Labor Relations Act (NLRA) After EFCA
Certification WITHOUT Election!
NLRB is precluded from holding election if union
requests certification upon achieving card
majority
•
No “pre-election” educational process
•
No assurance that all employees
participate
•
Risk of pressure tactics and
misrepresentations by organizers
17
National Labor Relations Act Under EFCA
Employer Penalties For Unlawful Discharge
• Notice posting
• Reinstatement
• Treble back pay
• $20,000.00 Fines for willful/repeated unfair
labor practices until negotiation of first
contract
• No corresponding fines for union unfair labor
practices
18
National Labor Relations Act (NLRA) After EFCA
FIRST CONTRACT NEGOTIATIONS
•
10 days to commence bargaining; 90 days to reach
agreement on all terms
•
30 days of mandated mediation; reduced incentive for
union negotiators to adopt reasonable positions
•
Arbitration – third party government appointed arbitrator
has power to impose contract terms for two years
•
Little or no risk of strike gives leverage to union
•
Where contract terms imposed, unit employees lose right
to vote upon and ratify agreement
19
Practical Effects Of EFCA
Winners and
Losers in an
EFCA World
20
Practical Effects Of EFCA
Unions would win . . .
• Millions of new members
• Increased financial resources
• Effective elimination of secret ballot elections and lawful
employer communications in opposition
• Leverage to offer less reasonable contract demands
• Guaranteed initial contracts
• Intimidation of supervision via remedial processes
21
Practical Effects Of EFCA
Employees could lose . . .
•
Secret ballot election, freedom from intimidation
•
Ability to consider complete information before
making decision to unionize
•
Opportunity to participate in decision (employees not
approached to sign cards left out)
•
Ratification vote on contracts
•
Chance to decertify the union for at least 24 months
(and only through secret ballot election)
•
Option/right to strike for better contract terms
22
Practical Effects Of EFCA
Employers . . .
•
Lose ability to communicate fully and effectively with
employees about union in timely manner
•
Expect unreasonable/excessive contract demands by
union; Lose leverage in initial negotiations
•
Face arbitrator-imposed labor costs and standards
regardless of unique business circumstances
•
Add union/cards as an ongoing business “agenda
item”
•
Anticipate increase in unfair labor practice charges,
and greater difficulty preventing/defending them
23
Practical Effects Of EFCA
Likely Organizing Tactics
• Increased use of “salts” (union
plants)
• First-time organizing of small and
medium-sized employers
• Increased filing of unfair labor
practice charges
• Organizing Incentive Programs
Practical Effects Of EFCA
Organizing incentive
program…
$5.00 per authorization card
obtained during the organizing
campaign, paid to the person
obtaining the authorization
card
$10.00 per authorization card
at the successful conclusion of
a card check or the successful
conclusion of an NLRB
election…
Practical Effects Of EFCA
Summary
• Effective elimination of secret ballot elections
• Increased union coercion and employee peer
pressure to get signed cards
• Employer difficulty in effectively
communicating position on unionization
• Less reasonable union contract demands
• Big increases in union market share, financial
resources and political influence
26
Practical Effects Of EFCA
EFCA Status Report:
Where Does It Stand
Now?
27
Status of EFCA
STATUS
“Change is finally having
a President…who will
make the Employee Free
Choice Act the law of the
land.” --- Barack Obama
3/09: Obama and Biden
both commit to support
EFCA passage at AFL-CIO
Convention
5/09: Obama calls for
reform to make it easier
to join unions
28
Status of EFCA
•
In 2007, passed House by vote
of 241 – 185
•
Senate cloture vote failed 51-48
(need 60) (Specter voted with
Democrats)
•
2009: 8 likely supporters of
EFCA have replaced Senators
who opposed EFCA in the 111th
Congress
EFCA Introduced March 10, 2009
following Obama and Biden
speeches pledging EFCA
support to AFL-CIO
H.R. 1409 (Rep. Miller, D-CA)
S.C. 560 (Sen. Harkin, D-IA)
29
EFCA – POLITICAL STATUS
The 111th Congress (2009-10)
House passage assured but Senate support a problem.
Some prior supporters not willing to sponsor EFCA or vote
for cloture
•
Mobilization of business lobbying
groups
•
Polls strongly against “card check”
•
Concerns re impact on weak
economy
•
“Bigger fish to fry”
30
EFCA – POLITICAL STATUS
The 111th Congress (2009-10)
March 5, 2009: Rep. Sestak (D-PA) introduces compromise
bill: National Labor Relations Modernization Act.
•
Retains secret ballot election
April 8, 2009: Sen. Blanche Lincoln (D-Ark) announces
inability to support EFCA in present form. “Nail in EFCA
coffin.”
•
Or is it?
31
EFCA – POLITICAL STATUS
The “Specter” of EFCA –
April 28, 2009: Sen. Arlen Specter becomes a
Democrat and declares continued opposition
to EFCA in present form.
• Relies upon promises of Sen. Reid (D-NV) to
retain seniority on committees in making
switch.
• Likely seating of Al Franken (D-MN) gives
Democrats potential 60-seat, filibuster-proof
majority.
32
EFCA – POLITICAL STATUS
The “Specter” of EFCA (cont’d):
May 5, 2009: Specter is stripped of seniority. Now
most junior Democrat on 4 out of 5 committees on
which he serves.
• Gives Democrats tremendous leverage. Specter
must go along with party leaders to regain seniority
after 2010 elections
Seating of Franken could provide 60 votes
needed to pass EFCA in present form.
May 14, 2009: Obama says he wants to correct the
“monkey business” affecting union organizing
33
The Myths Behind EFCA
MYTH
REALITY
Employers coerce employees to
vote “No”
Employer violations occur in 2%
of election cases
Unions can’t win elections under Unions won 59% of NLRB
the current system
elections in 2007
Labor Board conducted
elections take too long
94% of NLRB elections held
within 56 days
A card check is best way to
gauge employee support
The secret ballot is universally
validated by federal courts
Employers have unlimited
access to employees
Unions get employee
names/addresses within seven
days
Pre-election proceedings are
contentious
Election agreements reached in
85% of cases
34
Union Win Rates in Representation Elections
» 2000 – 53%
» 2001 – 55%
» 2002 – 57%
» 2003 – 58%
» 2004 – 59%
» 2005 – 61.4%
» 2006 – 61.5%
» 2007 – 59%
» 2008 – 66% as of June 30, 2008
35
EFCA Action Plan
What to Consider
Now?
36
6 Legal Steps to Insulate Your Business
Legal Musts!
• Create a union-free philosophy statement / issue-free
philosophy statement
• Identify your supervisors
• Train your supervisors on lawful communications with
employees
• Conduct a bargaining unit analysis
• Lock down your facility to minimize union access
• Educate all employees about EFCA and the risks of
signing a union authorization card
37
Who is a Supervisor under the NLRA?
Section 2(11) of the NLRA defines the term
supervisor:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connection
with [these activities] the exercise of such authority is
not of a merely routine or clerical nature, but requires
the use of independent judgment.
38
12 Steps to Neutralize EFCA
Step 1
Understand the various components of the
Employee Free Choice Act (EFCA) and its
likelihood of passage
Step 2
Advise your senior management on EFCA
and its possible impact on your
organization
Step 3
Identify your organization’s business
strategy, mission and values and plan to
communicate this to employees
12 Steps to Neutralize EFCA
Step 4
Evaluate your organization’s human
resources or “people strategy”
Step 5
Review your employee policies and
procedures for legal compliance and
enhancing communication
Step 6
Analyze your compensation systems and
processes
12 Steps to Neutralize EFCA
Step 7
Coach and advise supervisors and
managers on improving communication
and being better leaders
Step 8
Teach all employees about the
importance of annual performance
reviews
Step 9
Take the pulse of your employee
population
12 Steps to Neutralize EFCA
Step 10 Hire, retain and develop the “right people”
Step 11 Insure all employees understand their job
responsibilities and accountabilities
Step 12 Communicate, Communicate, Communicate
EFCA Timetable
• Passage once expected by spring or
early summer 2009
• Compromise bill is being drafted now
• Projected debate and passage-perhaps
fall 2009
43
Therefore…
•Employers need to very
seriously consider taking action
now in the time available
before EFCA, in some form,
becomes law.
44
Questions?
45
Our Presenters
Copyright: © 2009 Jackson
Lewis LLP
Reproduction in whole or in
part by any means
whatsoever is strictly
prohibited without the
advance written permission
of Jackson Lewis. | This
document is for informational
purposes only and not
intended as legal advice. |
This information may be
considered attorney
advertising in some states.
Furthermore, prior results do
not guarantee a similar
outcome.
Maria L. Petrillo, Esquire
Jackson Lewis LLP
Three Parkway
1601 Cherry Street, Ste 1350
Philadelphia, PA 19102
Tel: (267) 319-7806
[email protected]
Brian P. Kirby, Esquire
Attorney at Law
171 W. Lancaster Avenue
Suite 100
Paoli, PA 19301
Tel (610) 578-9050
[email protected]
Jim Geier
President and Founder
Human Capital Consulting
Partners LLC
Three Neshaminy Interplex
Suite 301
Trevose, PA 19053
Tel: (215) 244-8110
[email protected]
Michael Giantomaso
Vice President,
Human Resources
Aker Philadelphia Shipyard
2100 Kittyhawk Avenue
Philadelphia, PA 19112
Tel: (215) 875-2615
[email protected]
46