The Employee Free Choice Act ….What every healthcare employer needs to know. Presented by: Thomas V. Walsh Partner Jackson Lewis, LLP 1 North Broadway White Plains, NY TEL: Francesca Fierro O’Reilly Sr. Dir. Legislative Affairs AHCA/NCAL 1201 L Street, N.W., Washington, DC TEL:

UNION CERTIFICATION NLRB supervised secret ballot election the norm Card check recognition optional CONTRACT NEGOTIATIONS Employer/Union direct good faith bargaining No mandatory mediation or arbitration EMPLOYER PENALTIES NLRB supervised notice posting for most violations Reinstatement and back pay An order to bargain in good faith Injunction in some instances 2

OrganizingPetitionElection Certification & Bargaining Preferred Method…. a.Union obtains signatures from at least 30% of unit employees authorizing union representation. b.Union files request for election (“petition”) with NLRB c.Usually, within 42 days secret ballot election held d.Majority of votes cast wins e.Union certified, duty to bargain commences 3

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Organizing Majority Cards RecognitionBargaining Alternative – “Card Check” Method…. a.Union obtains signatures from a majority of unit employees b.Employer voluntarily agrees to accept cards as proof of representation c.No secret ballot election held d.Duty to bargain applies 6

7 Organizing Majority Cards Mandatory Recognition Bargaining: New Rules New Rules... a.Union obtains signatures from majority of unit employees. b.Union files request for certification (“petition”) with NLRB c.NLRB will NOT direct election; certification issued d.Union certified, duty to bargain commences Note: if union does not have a card majority, but more than 30%, an election is held

“Economic Weapons” Agreement Not Required No Time Limit Good Faith Bargaining a.Union and employer bound to make good faith effort to reach agreement. b.No requirement that either side agree to terms it does not want. c.No time limit. d.Leverage includes potential of strikes/lockouts. e.Any agreement reached is ratified by union member vote. 8

Collective Bargaining - Today For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession 9

2 Year contract Mediation 30 days Interest Arbitration Bargaining 90 days a.10 days to start bargaining b.90 days to negotiate a first contract. c.If no agreement – 30 days FMCS mediation. d.If no agreement, binding interest arbitration. e.Two year contract imposed. f.No union member ratification vote. 10

Remedies… Goal: restore status quo Reinstatement and/or backpay Cease & desist order Post notice Bargaining order Injunctive relief No fines or other “damages” available Remedial Provisions - Today 11

Remedies… Introduce punitive remedies Reinstatement and/or treble backpay Civil penalty of up to $20,000 per incident Mandate NLRB to seek pre-trial injunction Cease & desist order Post notice Bargaining order Remedial Provisions under EFCA 12

Employees lose secret ballot vote, and lose the guarantee that they can make their choice free from pressure or intimidation. Note: election could occur if union has no majority Employers lose the time to share factual information with employees. Certification may be assured before employer is aware of organizing Employees lose access to information from non-union sources; lose opportunity to consider complete information before making decision whether to unionize Employees may lose the chance to be heard (employees who are not approached to sign cards left out of decision-making) 13

14 Expect unreasonable/excessive contract demands by union No risk of strike means no reason for union to temporize demands Concern about government-appointed arbitrator imposing contract terms without adequate regard to patient care, regulatory standards, costs, or profitability Possible arbitrator imposition of underfunded multi-employer benefit plans No employee ratification vote No employee chance to decertify until two-year contract expires

15 Severely limits time available (if any time at all) to develop and roll out an educational program for employees Severity of remedies likely to have (by design) a chilling effect on employer communications with employees Triple backpay likely to discourage disciplinary enforcement of work rules Employers wishing to remain non-union will need to continually maintain a pro-active employee agenda

o 2007: passed House, majority support in Senate – stopped by filibuster o 2009: greater number of Democrats in House & Senate o Senate: now 58 (or 59) Democrats* and, with several additional supporters – enough to defeat filibuster? o President Obama has been outspoken supporter o EFCA vote appears likely in spring * As of 3/13/09 one seat still contested; two independents caucus with Democrats & pledge EFCA support; claimed additional support from a few Republicans 16

o 2007: passed House, majority support in Senate – stopped by filibuster o 2009: greater number of Democrats in House & Senate o Senate: now 58 (or 59) Democrats* and, with several additional supporters – enough to defeat filibuster? o President Obama has been outspoken supporter o EFCA vote appears likely in spring * As of 3/13/09 one seat still contested; two independents caucus with Democrats & pledge EFCA support; claimed additional support from a few Republicans 17 News! EFCA introduced in House & Senate 3/10/09!

Will modification be needed to avoid a filibuster? Some alternatives… Retain elections, but hold votes quickly (30 days? Less; 21? 14? 5?) Card check by super-majority (⅔ or ¾)? Defer unit litigation until after election; speed up appeals process? Interest arbitration: only in refusal to bargain cases? Must have interest arbitration guidelines Remedies: only for “intentional” violations? 18

19 Identify the bargaining unit Which jobs are likely to be included? Consider strategic modifications to job responsibilities

Identify supervisors – CRITICAL Supervisors are ineligible for unionization Employer’s most effective spokespersons Employer is liable for supervisors’ actions Supervisory status defined by § 2(11) Determination of status is vital Strategic modification of duties? Management Training Supervisors, managers, administrators Understand rights & responsibilities Effective communications 20

Assess HR policies & practices Discipline/Discharge policies Solicitation/Distribution rules Problem solving system Internal communications Performance appraisal procedures Prepare rapid response system 21

22 COMMUNICATE with all employees The legal significance of union cards The employer’s philosophy regarding unions EFCA – and what it means for employees Facts: costs, rules, and risks, etc. of unionization More information:

23 COMMUNICATION Typical First Communication EFCA will make it very easy for a union to organize. Your signature on a card or paper could be all it takes. There would probably never be an election. Don’t sign anything unless you have all the details to enable you to make an informed decision. If you have questions, feel free to ask us. Confer with counsel to ensure communications are lawful and effective.

Questions? 24 The Employee Free Choice Act ….What every healthcare employer needs to know.