Webinar: Preparing for EFCA and Union Organizing in 2009 Jackson Lewis LLP and Assisted Living Federation of America Copyright 2009 Jackson Lewis LLP

The Presenters Michael J. LotitoRoger P. Gilson, Jr. More than 60 years combined experience representing employers on union issues. 2

Copyright 2009 Jackson Lewis LLP JACKSON LEWIS LLP 3

Copyright 2009 Jackson Lewis LLP Topics We Cover Why Unions are on the Agenda—Bigger, Stronger with More Resources Why EFCA makes it easier for unions to organize Senior and Assisted Living Card-signing Campaigns- the New Battleground Preventing, Spotting and Responding Your Right to Free Speech—Your Property Rights Do’s and Don’ts Preventing Organizing Issues 4

Copyright 2009 Jackson Lewis LLP The Perfect Storm The Economy Market down Job insecurity up Political Environment President Obama Larger democratic majority in senate Labor’s contributions and expectations “State of the Unions” Steady decline In membership Fewer NLRB supervised elections Unions all united in support of EFCA 5

Copyright 2009 Jackson Lewis LLP Unions Strongly Motivated-a Question of Survival Percentage of Unionized U.S. Workforce – Private Sector 6

Copyright 2009 Jackson Lewis LLP Union “Corporate Campaign” against Assisted Living

Copyright 2009 Jackson Lewis LLP Unions on the Move-Fast Facts In unions begin to target the virtually non- union senior and assisted living industry In 2008, unions start to reverse their decline and spend over $400 million supporting pro-labor candidates Unions now win 67% of NLRB elections, but more than 70% of new members come in through card check deals Healthcare is the largest growth area for unions. SEIU, the fastest growing and largest, is at the forefront of assisted living campaigns 8

Copyright 2009 Jackson Lewis LLP EFCA=Union Organizing Made Easy “I’ve fought to pass the Employee Free Choice Act in the Senate. And I will make it the law of the land when I’m president of the United States of America.” 9

Copyright 2009 Jackson Lewis LLP In 2007, EFCA passed the House by vote of 241 – 185, but died in the Senate when supporter did not have 60 votes to cut off a filibuster. 2009: 8 likely supporters of EFCA have replaced Senators who opposed it Everyone expects a fight over the bill which could delay passage Obama has vowed to sign EFCA as soon as it comes to his desk On March 10, 2009, EFCA was re-introduced in both the House and Senate. Status of EFCA 10

Copyright 2009 Jackson Lewis LLP What EFCA Seeks to Replace Current “Road to Unionization” Union solicitation of support (usually via cards) Petition for election filed with NLRB (30% or more required) Employer communications Secret-ballot election Good faith negotiations OrganizingPetitionElection Post Election 11

Copyright 2009 Jackson Lewis LLP National Labor Relations Act (NLRA) Today Card Signing is the First Step in Unionization Process Most employers reject voluntary recognition through “card check” (majority required), so unions must request an election. Here is a sample authorization card 12

Copyright 2009 Jackson Lewis LLP National Labor Relations Act (NLRA) Today Union Certification via NLRB Election National Labor Relations Board supervised secret ballot election – private vote 13

Copyright 2009 Jackson Lewis LLP Organizing “Card Check” or “Quickie” Elections PetitionElection Bargaining Mediation Arbitration National Labor Relations Act (NLRA) After EFCA 14

Copyright 2009 Jackson Lewis LLP National Labor Relations Act (NLRA) After EFCA HIGHLIGHTS OF EFCA Union Certification Mandatory certification based solely on majority of employees signing cards or petition Contract Negotiations 90 days to negotiate entire first contract 30 days of mediation Mandatory interest arbitration for a two-year contract Employer Penalties Triple back pay for discharge violations committed during the organizing and negotiation process $20,000 civil damages for willful or repeated violations by an Employer 15

Copyright 2009 Jackson Lewis LLP Practical Effects Of EFCA EMPLOYEES WILL LOSE More hard sell, pressure tactics and misrepresentations in card signing campaigns Employees against the union may have no say--may not even know about card signing Card checks replace elections and election campaigns so only hear one side of the story Employees have no chance to change their minds and vote in private against the union No chance to get out for at least two years 16

Copyright 2009 Jackson Lewis LLP Practical Effects Of EFCA EMPLOYERS WILL LOSE No notice of card signing which often occurs under cloak of secrecy No election and no election campaign to convince employees to vote NO High risk of charges and fines may inhibit communications Only one bite at the apple-if you lose the “card signing campaign”—you lose, period Contract imposed on you by arbitrator 17

Copyright 2009 Jackson Lewis LLP Practical Effects Of EFCA UNIONS WILL WIN... Millions of new members from historically union-free industries like Assisted Living More dues revenue Effectively eliminate employer opposition Guaranteed initial contracts Intimidation of supervision via remedial processes 18

Copyright 2009 Jackson Lewis LLP TRUE CONFESSIONS OF A UNION ORGANIZER Unions are salivating over EFCA Just get employees to talk and then you’ve got them When you go to their house and ask them to sign..what are they going to do..say NO? You already know where they live! A little intimidation goes a long way 19

Copyright 2009 Jackson Lewis LLP WHY POTENTIAL EFCA COMPROMISES ARE NOT SO PROMISING Some Suggested Compromises to EFCA Secret ballot but quickie election-14 days? Union given equal access to voters on working time Expedited enforcement and penalties for unfair labor practices Expedited timetable for bargaining and strict penalties for bad faith bargaining Caution: employer that loses card signing campaign will find it hard to win election in only 14 days when union is on your property--- key is still to win card signing 20

Copyright 2009 Jackson Lewis LLP What Unions Say About Cards “Sign and we’ll get you more…….” “It won’t cost you anything” “It’s just to see who is interested” “Everybody else has already signed” Unions can legally use the “hard sell,” peer pressure and make false claims about cards 21

Copyright 2009 Jackson Lewis LLP Truth About Cards Legal Document Binding the Employee Often contain membership clause Sometimes dues deduction “Power of Attorney” empowering the Union “I wish to be represented …” A Blank Check with No Expiration Date… Lasts at least a year You don’t know what it could cost in the end If EFCA is enacted, a simple majority of signed cards (50%+1) automatically certifies union 22

Copyright 2009 Jackson Lewis LLP WHY ASSISTED LIVING EMPLOYERS SHOULD WORRY NOW You must act as if you are now in an “EFCA world” and start preemption Union cards are good for at least one year after they are signed Unions now getting signed cards and holding them waiting for EFCA to pass Your first notice could be a fax from NLRB Once certification is filed—unionization becomes virtual certainty 23

Copyright 2009 Jackson Lewis LLP WHY EFCA MAKES ASSISTED LIVING AN EASIER TARGET 24

Copyright 2009 Jackson Lewis LLP Home Visits and Phone Calls Paid Organizers Planted as New Employees or through Staffing Agency Organizers Gain Access as Visitors, Vendors or Appearing to be Employees Gain Support from Outside Groups, Social Organizations, Neighborhood Associations, Church, Synagogues Home Visits and Phone Calls Paid Organizers Planted as New Employees or through Staffing Agency Organizers Gain Access as Visitors, Vendors or Appearing to be Employees Gain Support from Outside Groups, Social Organizations, Neighborhood Associations, Church, Synagogues How Unions Organize Home Visits and Phone Calls- Impersonating Company Employees Paid Organizers Planted as New Employees or through Staffing Agency Organizers Gain Access as Visitors, Vendors or Appearing to be Employees Gain Support from Residents and Outside Groups 25

Copyright 2009 Jackson Lewis LLP Assisted Living Vulnerability under EFCA Community is vulnerable to card signing under ”cloak of secrecy” Community leaders have large span of control and cannot to detect organizing signs and symptoms Communities open to public often lack security protocols to keep organizers out Many companies lack resources to mobilize personnel to mitigate card signing Company strength is beating union in open and concentrated election campaign, but not a prolonged secret card signing campaign 26

Copyright 2009 Jackson Lewis LLP EFCA Action Plan Immediate EFCA Action Plan Required 27

Copyright 2009 Jackson Lewis LLP Immediate EFCA Action Plan Talk about EFCA and Unions Identify and educate NLRA supervisors: Significance of cards under EFCA Spotting early warning signs of activity Rapid Reporting of union activity Create an issue free environment Educate employees on EFCA and cards Ensure policies comply with NLRA Post property- know/enforce your rights Provide fair wages and treatment Conduct vulnerability assessment 28

Copyright 2009 Jackson Lewis LLP Your Right to Speak Out 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 29

Copyright 2009 Jackson Lewis LLP Communicate with Employees New Hire Orientation Periodic Human Resources Update for Current Employees on Employee Philosophy Special EFCA Training Video Periodic Supervisory Training 30

Copyright 2009 Jackson Lewis LLP Legal Restrictions on Management TT hreats I I nterrogation P P romises/bribes S S pying Things You Cannot Say: Management Office Rule 31

Copyright 2009 Jackson Lewis LLP Early Warning Signs—Know and Report What are they? How can I spot them? What should I do if I see them? 32

Copyright 2009 Jackson Lewis LLP Early warning signs Early Warning Signs Nature/Frequency of employee complaints changes Groups form that include individuals who do not normally associate with each other Managers receive large number of policy inquiries Employees in work areas they do not normally visit Argumentative questions being asked in staff meetings Avoidance of supervision 33

Copyright 2009 Jackson Lewis LLP Is Lawful Rule Posted? GET OUT No Solicitation, Distribution or Trespass by Non-Employees 34

Copyright 2009 Jackson Lewis LLP Lawful Employee Rules Solicitation by employees Permitted ONLY if all employees involved are on non- work time NEVER permitted in immediate resident care areas Distribution by employees Permitted in non-work areas ONLY if all employees involved are on non-work time NEVER permitted in work areas NEVER permitted in immediate resident care areas Bulletin Boards Lawful Off-Duty Access Limited to Inside Rules Must Be in Place Before Union Appears Check Your Handbook—Is Wording Lawful? 35

Copyright 2009 Jackson Lewis LLP Role of Manager in Preventing Union Who shows appreciation? Who communicates and makes employees feel in on things? Who connects and listens? Who can make an employee feel disrespected or ignored? 36

Copyright 2009 Jackson Lewis LLP Take Away Points Know, understand and implement Pro-Employee Philosophy Treat employees fairly and with respect Be comfortable discussing disadvantages of card signing If you see something say something 37

Copyright 2009 Jackson Lewis LLP Questions? Please feel free to your questions to the presenters by referring to the instructions set forth in the invitation or contact ALFA.org 38

Copyright 2009 Jackson Lewis LLP 39