Presented by Lawrence F. Feheley Kegler, Brown, Hill & Ritter 65 East State Street, Suite 1800 [email_address] The Proposed “EMPLOYEE FREE CHOICE ACT”

Three Major Changes If The EFCA Passes: Elimination of Secret Ballot Elections Mandatory Arbitration for Contract Terms Significantly Increased Employer Penalties 1

Elimination of Secret Ballot Elections

Mandatory Arbitration for Contract Terms

Significantly Increased Employer Penalties

A. What Do We Have Right Now? 2

A. What Do We Have Right Now?

NOW - Exclusive Representative Status A. Union can become the exclusive representative of employees if: The union presents a showing of interest (authorization cards, petition) from more than 50% of the employees and the employer voluntarily recognizes the union; or The union files a petition with the NLRB, supported by at least a 30% showing of interest, and the union wins a secret ballot election. 3

A. Union can become the exclusive representative of employees if:

The union presents a showing of interest (authorization cards, petition) from more than 50% of the employees and the employer voluntarily recognizes the union; or

The union files a petition with the NLRB, supported by at least a 30% showing of interest, and the union wins a secret ballot election.

NOW - What Is An Authorization Card? 4

NOW - Secret Ballot Election After the petition is filed, the NLRB schedules an election. Median time to an election = 39 days (5 weeks) 94% of all elections occur within 56 days (8 weeks) Each side is permitted to communicate their views on organization to the employees. Unlawful acts by either side during the “laboratory period” can invalidate the election results. The NLRB conducts a secret ballot election . Employees who have signed authorization cards can vote any way they want. The union wins the right to be the exclusive representative if it receives more than 50% of the votes cast . 5

After the petition is filed, the NLRB schedules an election.

Median time to an election = 39 days (5 weeks)

94% of all elections occur within 56 days (8 weeks)

Each side is permitted to communicate their views on organization to the employees.

Unlawful acts by either side during the “laboratory period” can invalidate the election results.

The NLRB conducts a secret ballot election .

Employees who have signed authorization cards can vote any way they want.

The union wins the right to be the exclusive representative if it receives more than 50% of the votes cast .

NOW - The Obligation To Bargain If the union wins the election, the employer is obligated to bargain in good faith with the union. The union is the exclusive representative of all employees in the bargaining unit. The employer must bargain over all terms and conditions of employment. Each side must bargain in good faith; neither side is compelled to agree to any specific terms. 6

If the union wins the election, the employer is obligated to bargain in good faith with the union.

The union is the exclusive representative of all employees in the bargaining unit.

The employer must bargain over all terms and conditions of employment.

Each side must bargain in good faith; neither side is compelled to agree to any specific terms.

NOW - What Happens Upon An Impasse In Bargaining? Possible outcomes for the union: Continue to bargain until an agreement is reached; The employer may implement its final offer. Agree to the terms proposed by the employer; Convince the employees to go on strike, to force the employer to modify its position. The employer can lock out the employees. 7

Possible outcomes for the union:

Continue to bargain until an agreement is reached;

The employer may implement its final offer.

Agree to the terms proposed by the employer;

Convince the employees to go on strike, to force the employer to modify its position.

The employer can lock out the employees.

NOW - Remedies For Employer Unfair Labor Practices Backpay Reinstatement Post Notice In extreme cases, an Order to Bargain 8

Backpay

Reinstatement

Post Notice

In extreme cases, an Order to Bargain

B. Why Do The Unions Want To Change The Current Law? 9

B. Why Do The Unions Want To Change The Current Law?

Unions Are A Business. The key to the union’s business is membership dues. Union Security clauses. 10

The key to the union’s business is membership dues.

Union Security clauses.

Union Complaints About The Current System: It takes too long to have an election; Bargaining for a first contract takes too long; Employers have too much access to employees; Employers violate the law to defeat organizational attempts. 11

It takes too long to have an election;

Bargaining for a first contract takes too long;

Employers have too much access to employees;

Employers violate the law to defeat organizational attempts.

So, What Is The Unions’ Real Problem With The Current Law? 12

C. How Would The EFCA Change Things? 13

C. How Would The EFCA Change Things?

EFCA- Becoming The Exclusive Representative The union can bypass the election process completely. The union can obtain and submit signed authorization cards from a majority of employees to the NLRB. NO election campaign would occur. “ If the [National Labor Relations] Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations… the Board shall not direct an election but shall certify the individual or labor organization.” 14

The union can bypass the election process completely.

The union can obtain and submit signed authorization cards from a majority of employees to the NLRB.

NO election campaign would occur.

“ If the [National Labor Relations] Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations… the Board shall not direct an election but shall certify the individual or labor organization.”

EFCA- Authorization Cards are Unreliable Authorization card signatures are frequently the product of misrepresentation fraud coercion, threats peer pressure “ Although the union in this case had a card majority, by itself this has little significance. Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back, since signing commits the worker to nothing.” NLRB v. Village IX, Inc., 723 F. 2d 1360 (7 th Cir. 1983) 15

Authorization card signatures are frequently the product of

misrepresentation

fraud

coercion, threats

peer pressure

“ Although the union in this case had a card majority, by itself this has little significance. Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back, since signing commits the worker to nothing.” NLRB v. Village IX, Inc., 723 F. 2d 1360 (7 th Cir. 1983)

EFCA- Authorization Cards Are Unreliable Under current law, most unions will not even ask for an election unless they have authorization cards signed by 60% or more of the employees. Unions win only 8% of elections that are held after less than 40% of workers sign cards. [AFL-CIO Organizing Survey (1989)] “It is not until the union obtains signatures from 75% or more of the unit that the union has more than a 50% likelihood of winning the election.” [AFL-CIO Organizing Survey] 16

Under current law, most unions will not even ask for an election unless they have authorization cards signed by 60% or more of the employees.

Unions win only 8% of elections that are held after less than 40% of workers sign cards. [AFL-CIO Organizing Survey (1989)]

“It is not until the union obtains signatures from 75% or more of the unit that the union has more than a 50% likelihood of winning the election.” [AFL-CIO Organizing Survey]

EFCA- Secret Ballots Are Preferred “ Board elections are the preferred means of establishing whether a union has the support of a majority of the employees in a bargaining unit.” [Brief of United Food & Commercial Workers AFL-CIO in Levitz Furniture Co., 333 NLRB 717 (2001), a decertification case] “ It is beyond dispute that secret election is a more accurate reflection of the employees’ true desires than a check of authorization cards collected at the behest of a union organizer.” [ NLRB v. Flomatic Corp., 347 F.2d 74 (2 nd Cir. (1965)] 17

“ Board elections are the preferred means of establishing whether a union has the support of a majority of the employees in a bargaining unit.” [Brief of United Food & Commercial Workers AFL-CIO in Levitz Furniture Co., 333 NLRB 717 (2001), a decertification case]

“ It is beyond dispute that secret election is a more accurate reflection of the employees’ true desires than a check of authorization cards collected at the behest of a union organizer.” [ NLRB v. Flomatic Corp., 347 F.2d 74 (2 nd Cir. (1965)]

EFCA- Secret Ballots Are Preferred “ It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a ‘card check,’ unless it were an employer’s request for an open show of hands.” [ NLRB v. S.S. Logan Packing Co., 386 F. 2d 562 (4 th Cir. 1967)] “ An election is the preferred method of determining the choice by employees of a collective bargaining representative.” [ United Services for the Handicapped v. NLRB , 678 F. 2d 661 (6 th Cir. 1982)] 18

“ It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a ‘card check,’ unless it were an employer’s request for an open show of hands.” [ NLRB v. S.S. Logan Packing Co., 386 F. 2d 562 (4 th Cir. 1967)]

“ An election is the preferred method of determining the choice by employees of a collective bargaining representative.” [ United Services for the Handicapped v. NLRB , 678 F. 2d 661 (6 th Cir. 1982)]

EFCA- Bargaining For The First Contract The parties must begin negotiations within 10 days after the union is certified as the bargaining representative. If no agreement is reached within 90 days, either party may request mediation through the Federal Mediation and Conciliation Service. If no agreement is reached within 30 days the parties must engage in mandatory interest arbitration. 19

The parties must begin negotiations within 10 days after the union is certified as the bargaining representative.

If no agreement is reached within 90 days, either party may request mediation through the Federal Mediation and Conciliation Service.

If no agreement is reached within 30 days the parties must engage in mandatory interest arbitration.

EFCA- Bargaining for the First Contract The contract imposed by the arbitrator is binding for a minimum of 2 years. There is no provision for any appeal or review of the arbitrator’s contract decision. The FMCS “shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of two years…” 20

The contract imposed by the arbitrator is binding for a minimum of 2 years.

There is no provision for any appeal or review of the arbitrator’s contract decision.

The FMCS “shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of two years…”

EFCA- Enhanced Employer Penalties Mandatory Injunctive Relief for unfair labor practices during organizing or bargaining. Individuals would recover backpay, plus two times that amount (treble damages). Employers could be liable for $20,000 civil penalties, per violation, for unfair labor practices during organizing or bargaining, if committed “willfully” or “repeatedly.” 21

Mandatory Injunctive Relief for unfair labor practices during organizing or bargaining.

Individuals would recover backpay, plus two times that amount (treble damages).

Employers could be liable for $20,000 civil penalties, per violation, for unfair labor practices during organizing or bargaining, if committed “willfully” or “repeatedly.”

D. Will The EFCA Pass? “ We will pass the Employee Free Choice Act. It’s not a matter of if, but when.” -Sen. Obama 22

D. Will The EFCA Pass?

E. Unanswered Questions On The EFCA 23

E. Unanswered Questions On The EFCA

EFCA- Unanswered Questions How will an appropriate bargaining unit be determined? Will it be possible to challenge how authorization cards are signed? Can signed authorization cards be revoked? Will the Board regulate card signing? Can unions be decertified by the same process? Are there any penalties for illegal union conduct? Is mandatory arbitration constitutional? What standards will arbitrators use to decide on contract terms? Can arbitration decisions be reviewed or appealed? Is there a “laboratory period” for unfair labor practices? What are “willful” or “repeated” violations? 24

How will an appropriate bargaining unit be determined?

Will it be possible to challenge how authorization cards are signed?

Can signed authorization cards be revoked?

Will the Board regulate card signing?

Can unions be decertified by the same process?

Are there any penalties for illegal union conduct?

Is mandatory arbitration constitutional?

What standards will arbitrators use to decide on contract terms?

Can arbitration decisions be reviewed or appealed?

Is there a “laboratory period” for unfair labor practices?

What are “willful” or “repeated” violations?

F. What Can We Do Now? 25

F. What Can We Do Now?

Sound The Alarm Explain the dangers of the EFCA to Company leaders, stakeholders, and elected representatives. Be sure Company directors and executive teams understand how the EFCA will affect your Company Contact U.S. legislators, especially Senators, to urge that the EFCA not be passed. Support opposition group efforts. 26

Explain the dangers of the EFCA to Company leaders, stakeholders, and elected representatives.

Be sure Company directors and executive teams understand how the EFCA will affect your Company

Contact U.S. legislators, especially Senators, to urge that the EFCA not be passed.

Support opposition group efforts.

Take Steps To Reduce Union Vulnerability Review hiring practices (“salts”) Evaluate potential employee issues. Fix those that can be fixed Explain why others can’t be fixed Find ways to increase communication Consider a problem-solving program Look for health/safety issues Look for pay/benefit issues Review personnel policies No-solicitation rule Union-free statement 27

Review hiring practices (“salts”)

Evaluate potential employee issues.

Fix those that can be fixed

Explain why others can’t be fixed

Find ways to increase communication

Consider a problem-solving program

Look for health/safety issues

Look for pay/benefit issues

Review personnel policies

No-solicitation rule

Union-free statement

Train And Educate Supervisors And Managers Recognize early warning signs of unionization Understand the rules TIPS Expectations for supervisors Explain communication tools and opportunities Explain employee discussion topics Company position Advantage of Union-Free environment Disadvantages and dangers of union organization 28

Recognize early warning signs of unionization

Understand the rules

TIPS

Expectations for supervisors

Explain communication tools and opportunities

Explain employee discussion topics

Company position

Advantage of Union-Free environment

Disadvantages and dangers of union organization

Communicate With Employees Orient new hires to union-free philosophy Explain the advantages of union-free environment Explain the disadvantages and dangers of union organization Explain how unionization will affect employees personally Explain the Company position Explain the significance of authorization cards Solicit input and feedback 29

Orient new hires to union-free philosophy

Explain the advantages of union-free environment

Explain the disadvantages and dangers of union organization

Explain how unionization will affect employees personally

Explain the Company position

Explain the significance of authorization cards

Solicit input and feedback

How Do We Do This? One-on-one conversations Group meetings Bulletin board notices Letters home 30

One-on-one conversations

Group meetings

Bulletin board notices

Letters home

Implement A Quick Response Team Have a team ready to respond the first week after any evidence of card signing Collect and analyze isolated information from supervisors Establish communication procedures Plan the first week’s response: Define campaign issues and strategy Plan group meetings Prepare talking points Prepare information packets Gather data about the union Prepare comparative data on wages, benefits, etc. Identify influential employee opinion-makers who would aggressively oppose the union 31

Have a team ready to respond the first week after any evidence of card signing

Collect and analyze isolated information from supervisors

Establish communication procedures

Plan the first week’s response:

Define campaign issues and strategy

Plan group meetings

Prepare talking points

Prepare information packets

Gather data about the union

Prepare comparative data on wages, benefits, etc.

Identify influential employee opinion-makers who would aggressively oppose the union

Thank You! Lawrence F. Feheley, Esq. Kegler, Brown, Hill & Ritter Co., L.P.A. Suite 1800, 65 East State Street Columbus, Ohio 43215 Direct Dial: (614) 462-5432 Fax: (614) 464-2634 Email: [email_address] www.keglerbrown.com

Thank You!

Lawrence F. Feheley, Esq.

Kegler, Brown, Hill & Ritter Co., L.P.A.

Suite 1800, 65 East State Street

Columbus, Ohio 43215

Direct Dial: (614) 462-5432

Fax: (614) 464-2634

Email: [email_address]

www.keglerbrown.com