efca - davis wright tremaine preso

How an Obama Presidency Could Change

Your Workplace

Maria AnastasAaron Roblan505 Montgomery Street, Suite 800San Francisco, California 94111Phone: 415-276-6500 | Fax: 415-276-6599

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

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%


EFCA

Housing crisis

Demographicshift in U.S. workforce

Distrust of corporations

Bailouts

Democrat-controlledGovernment

Health care crisis

Retirement crisis

1.9 million jobs lost in ‘08


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”

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?


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


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


Under the Current Version of EFCA– Unions may be certified without an election

By obtaining signatures from a simple majority of your employeesThe 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


Under the Current Version of EFCA – Expedited Bargaining

Bargaining must commence within 10 days of receiving a demand from the unionIf no agreement is reached within 90 days, either party can demand federal mediationIf 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


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


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

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


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


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


STEP FOUR:Identify Anticipated Organizational Changes

(Before Union Organizing Begins)

– Wages, benefits, policies and procedures– Subcontracting– Lay-offs


STEP FIVE:Train Your Management

– Employee relations skills– Managing across generations– Legal do’s and don’ts– Card signing – Communication workshops


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.)


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

Other Changes to Labor Law Under an Obama Presidency

RESPECT Act Email rulesWeingarten rights extendedRight to work law banProtection of political speechPatriot Employer Act

Presenter Contact Information

Maria [email protected](415) 276-6568 Direct(415) 276-6599 Fax

Aaron [email protected](415) 276-6571 Direct(415) 276-6599 Fax

Suite 800505 Montgomery Street

San Francisco, California 94111-6533

mailto:[email protected]

mailto:[email protected]

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