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New Jersey Family Leave Benefits 2 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

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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.

5 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.”

6 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 efca/

7 Why Now? American Private Sector Employees Represented by Unions 1954 – 39.2% (all-time high) 1973 – 24.2% 2008 – 7.5% ???

8 Authorization Cards

Certifying A Union

10 Certifying A Union Today

11 Campaign Period Current 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)

12 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

13 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

14 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

15 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

16 Secret Ballot S A M P L E

The EFCA WAY!

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19 Authorization Cards

20 Privacy?

21 The Union is in… Now What??

Negotiating With The Union

23 Out with the old… In with new… Current labor negotiations under the NLRA Proposed changes under the EFCA

24 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 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

25 The EFCA Proposed Schedule 10 Days to begin negotiations 90 Days of negotiation 30 Days of mediation Then...

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

27 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

ULP Remedies – Ouch! What they are, and the price to pay under current law and EFCA

29 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

30 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

31 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

Planning for the EFCA How to prepare for the worst case scenario

33 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

34 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

35 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

36 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

37 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

38 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

39 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

40 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

41 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

42 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

Will It Pass?

44 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

45 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

Questions & Answers Thank you for coming!