EFCA - Davis Wright Tremaine Preso

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EFCA - Davis Wright Tremaine Preso

  1. 1. How an Obama Presidency Could Change Your Workplace Maria Anastas Aaron Roblan 505 Montgomery Street, Suite 800 San Francisco, California 94111 Phone: 415-276-6500 | Fax: 415-276-6599
  2. 2. Today’s Presentation Climate for the Employee Free Choice Act (EFCA) Employee Free Choice Act Preparation: 7 Steps to Reduce Your Vulnerability Other Possible Changes to Labor Law Under an Obama Presidency
  3. 3. The Climate for EFCA Unions in America Today – 7.8% of private sector workers belong to a union – Only 15.7 million workers are unionized in the private and public sector combined – EFCA could dramatically change these numbers – Organized labor predicts that EFCA will increase union membership by 10%
  4. 4. The Climate for EFCA Retirement crisis 1.9 million jobs Health care crisis lost in ‘08 Demographic Democrat-controlled shift in U.S. EFCA Government workforce Housing crisis Bailouts Distrust of corporations
  5. 5. The Climate for EFCA
  6. 6. The Climate for EFCA Organizing Workers (with or without EFCA) – Unions cards or petitions (electronic organizing) – Traditional method of identifying a group of disgruntled current or former employees – Mass emailing or leafleting to generate interest – They will rely on the fact that most employees do not know that union cards are legally binding documents – They will capitalize on the current movement for “change”
  7. 7. How Vulnerable Are You? Think about your average employee— regardless of their sophistication or education level – Would they sign a union card if they are told by a coworker that it is simply to get information from the union? Or if they are told it will guarantee job security and better healthcare? If you do nothing, what are the chances that your company may become unionized?
  8. 8. Employee Free Choice Act Current Labor Law: Two primary ways a union can become the legal representative: 1) Secret Ballot Election – Election petition requires signatures from minimum of 30% of workforce – Election held within 42 days (if no hearing) 2) Voluntary Recognition – Only by agreement of the employer – 50% + 1 of employees must sign cards or petition
  9. 9. Employee Free Choice Act Current Labor Law: If a union becomes the legal representative: – No legal requirement that you reach an agreement – Length of time to reach an initial agreement is one year (based on national average) – Employees generally retain the right to ratify the contract – Back pay is the only monetary penalty for unlawfully terminating an employee in violation of the NLRA
  10. 10. Employee Free Choice Act Under the Current Version of EFCA – Unions may be certified without an election By obtaining signatures from a simple majority of your employees The National Labor Relations Board verifies the signatures and majority status If they do, the union could be certified without employees ever voting on the issue of union representation
  11. 11. Employee Free Choice Act Under the Current Version of EFCA – Expedited Bargaining Bargaining must commence within 10 days of receiving a demand from the union If no agreement is reached within 90 days, either party can demand federal mediation If no agreement is reached within 30 days of mediation, either party can demand arbitration The panel of arbitrators can impose a two year agreement on the parties (they will decide what your contract will contain) Employees lose the right to ratify the contract
  12. 12. Employee Free Choice Act Under the Current Version of EFCA – Enhanced Penalties For Unfair Labor Practices Backpay plus a penalty equal to double the backpay award (for unlawful employee terminations) Civil penalties of up to $20,000 for each violation of the National Labor Relations Act, regardless of whether backpay is involved
  13. 13. Employee Free Choice Act A compromise on EFCA may include: – Card check recognition only if super majority exists – Penalties for union misrepresentation/coercion during card signing – Card check recognition for all representation elections, including decertification elections – Requiring union notice of organizing – Shorter election timeframes (Canadian Model) as opposed to eliminating the secret ballot election – Longer bargaining periods before arbitration will be mandated
  14. 14. 7 Steps to Reduce Your Vulnerability STEP ONE: Determine Your Commitment to EFCA Issues – Convene a meeting of senior leaders to discuss a unified approach – Your organization must speak with one voice on labor matters – Prepare a labor relations philosophy
  15. 15. 7 Steps to Reduce Your Vulnerability STEP TWO: Develop a Plan Tailored to Your Organization – Review your business objectives – Evaluate your employee demographics – Determine your communication strategy – Identify leaders who will play active roles in the implementation – Create a timeline and accountability
  16. 16. 7 Steps to Reduce Your Vulnerability STEP THREE: Conduct a Vulnerability Audit – Identify potential employee relations issues – Assess managers and supervisors – Evaluate wage and benefits issues – Identify statutory supervisors – Perform bargaining unit analysis – Create action plan
  17. 17. 7 Steps to Reduce Your Vulnerability STEP FOUR: Identify Anticipated Organizational Changes (Before Union Organizing Begins) – Wages, benefits, policies and procedures – Subcontracting – Lay-offs
  18. 18. 7 Steps to Reduce Your Vulnerability STEP FIVE: Train Your Management – Employee relations skills – Managing across generations – Legal do’s and don’ts – Card signing – Communication workshops
  19. 19. 7 Steps to Reduce Your Vulnerability STEP SIX: Communicate With Employees – About your labor relations philosophy – About unions and authorization cards – About their work life and opportunities for advancement – About the organization (changes, developments, challenges, etc.)
  20. 20. 7 Steps to Reduce Your Vulnerability STEP SEVEN: Provide a Voice at Work ─ Evaluate what you currently do and don’t do ─ Seek input from all levels of the organization on how to change ─ Consider new initiatives that give employees a meaningful voice ─ We can help you
  21. 21. Other Changes to Labor Law Under an Obama Presidency RESPECT Act Email rules Weingarten rights extended Right to work law ban Protection of political speech Patriot Employer Act
  22. 22. Presenter Contact Information Maria Anastas Aaron Roblan mariaanastas@dwt.com aaronroblan@dwt.com (415) 276-6568 Direct (415) 276-6571 Direct (415) 276-6599 Fax (415) 276-6599 Fax Suite 800 505 Montgomery Street San Francisco, California 94111-6533

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