It Ain’t Necessarily So:

Labor Law Reform 2010

The Reality Beyond EFCA

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Presented by: Ed Cherof, Esq.

National Labor Relations Act (NLRA) Today

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

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Union Authorization Card

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Secret Ballot

Union Certification via NLRB Election• National Labor Relations Board supervised secret

ballot election – private vote

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Probable Components of EFCA Compromise…

• No “card check”• “Quickie” elections -- 10-21 days from

petition• Enhanced remedies• Possible “baseball style” arbitration for

1st contracts• Binding interest arbitration -- right or

remedy• Equal access to employees for unions

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Possible EFCA Compromise

Caution: Employers will find it harder to win elections in 10-21 days with union access and triple penalties.

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Executive Orders – E.O. 13496

NOTICES MUST BE POSTED ON RIGHT TO ORGANIZE

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Other Executive Orders Favoring Unions

“NONDISPLACEMENT OF QUALIFIED WORKERS UNDER SERVICE CONTRACTS”- E.O. 13495Service contractor must offer jobs to prior contractor’s employees to help preserve the union and union jobs

“ECONOMY IN GOVERNMENT CONTRACTING”- E.O. 13494Contractor cannot use government funds to pay cost incurred for labor consultants, union-free training or lawful communications concerning unions

PROJECT LABOR AGREEMENTS - E.O. 13502Federal agencies can require every contractor or subcontractor on a large-scale construction project to negotiate or become a party to a Project Labor Agreement (PLA) with one or more labor organizations  

  Note potential: “High Road” Contracting Policy: preferring

contractors who adopt certain labor practices

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Other Federal and State Labor Law Initiatives

RESPECT ACT - To revise the labor law to enable unions to organize first line supervisors

PATRIOT ACT - To give tax credit to employers who do not oppose unions

OREGON WORKER FREEDOM ACT - To prohibit employers from holding employee meetings to discuss unions*

* Jackson Lewis is representing Oregon Business and Industry in court challenge to law

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New National Labor Relations Board “Labor Law Reform Without an Act of Congress”

Current Members (As Of 3/26/10)

CHAIR WILMA LIEBMAN Term Expires 2011

Clinton/Bush/Obama Appointee

PETER SCHAUMBER Term Expires August 2010

Bush Appointee-Former Arbitrator

Additional Members (Obama Recess Appointees On 3/27/10)

CRAIG BECKER Term Expires 2011 Previously Assoc. General Counsel SEIU & AFL-CIO

MARK PEARCE Term Expires 2011Previously Partner at Creighton, Pearce, Johnson and Giroux

Remaining Pending NomineeBRIAN HAYESRepublican Staffer, Senate HELP Committee10 10

The Fight Over Becker’s Nomination

July 9, 2009 - Nominated by President Obama October 21, 2009 - Senator McCain places a hold

on Mr. Becker’s nomination and insists on a public hearing

January 7, 2010 - President Obama re-nominates Becker to the NLRB

February 2, 2010 - Public hearing held before HELP committee on Becker nomination

February 10, 2010 - Senate Democrats fail to invoke cloture on Becker’s nomination (52-33)

March 25, 2010 - After Obama administration hints that “recess” appointment likely, Senate Republicans send opposition letter to the President

March 27, 2010 – Recess appointments of Becker and Pearce

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New Labor Majority

Wilma Liebman

• Current Chair of NLRB • Dissented in employer favorable decisions of

Bush Board, such as:– Restrictions on use of company e-mail for union

communications– Restriction on union petitions to combine temporary and

contract workers with regular employees in union elections

– Restrictions on abusive language do not violate labor law

• Former Counsel for the Bricklayers Union and the Teamsters Union

• Former NLRB Staff Attorney

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New Labor Majority

Craig BeckerPreviously Associate General Counsel for the SEIU and AFL-CIO• Has expressed extreme views on labor law:

– “Employers should be stripped of any legally cognizable interest in their employees' election of representatives."

– Proposed to eliminate the mandate that the NLRB certify a union only after an NLRB supervised election.

– Proposed the NLRB should restrict or eliminate an employer’s right to communicate with employees during election campaign.

– Proposed to eliminate an employer’s right to have an observer present during NLRB-conducted election

Source: Minnesota Law Review, 1993

• Engineered changes in state laws to permit unionization of home healthcare workers

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New Labor Majority

Mark Pearce

• Labor Side Attorney in Buffalo, NY• Former NLRB Attorney• “Pearce’s representation of corrupt union

leaders at the expense of workers makes him unsuitable for this position.”- Bill Wilson, President Americans for Limited Gov’t

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Labor Law Reform Without EFCA

The New Labor Board can re-write labor law in two ways:

Through Adjudication -- Reversing pro-employer Bush Board decisions and issuing new decisions favoring unions in novel ways

Through Rulemaking -- Issuing rules that permanently shift the balance in favor of unions

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Labor Law Reform Through Adjudication

NLRB will make it harder to prove front-line supervisors are exempt from unionization

NLRB will reverse Bush Board decision requiring employer consent before temporary employees can be unionized with its regular employees

NLRB to reverse Register Guard removing employer right to prohibit employees from discussing unions via email systems

NLRB will likely restrict employer right to issue facially neutral non-harassment rules that could be seen as limiting union free speech

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NLRB will issue New York New York decision giving contractor employees equal rights to solicit/distribute on company property

NLRB likely to impose upon companies joint employer liability over a contractor’s employees even where they are not directly supervised

NLRB will revisit IBM Corp. to grant “Weingarten” rights to non-union employees

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Labor Law Reform Through Adjudication

Labor Law Reform Through Rulemaking

New Election Rules to Favor Unions Mandatory union rights postings Expedited election processing Mail and e-balloting

More Aggressive Remedies in Initial Organizing and First Contract Cases Union access to premises Equal time rules in campaigns Mandated bargaining schedule and

monitoring in bad faith bargaining cases

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Labor Law Developments + Corporate Campaign Approaches = New Labor Landscape

Unions Fighting Wall Street

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Unions In Health Care

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Labor Law Developments + Corporate Campaign Approaches = New Labor Landscape

What to Expect in 2010 and Beyond

• Now that Congress has passed Health Care Reform, EFCA may pass in some form

• Presidential Executive Orders will impact federal contractors

• Even without EFCA, the NLRB will actively modify prior interpretations of the NLRA to favor unions

• Union organizing through use of corporate campaigns and other approaches will intensify to take advantage of the new labor landscape

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Employer Strategies -- Next Steps

• Determine what it means for your organization to be an “employer of choice” -- today and tomorrow

• Develop an up-to-date strategic, comprehensive, integrated labor relations plan (whether fully or partially unionized, or union-free)

• Insure “C” suite buy-in for the plan• Create an effective labor relations and communications

program for important “stakeholders”– board members, shareholders, executives, employees, politicians, customers, etc.

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• Conduct a vulnerability assessment to address and eliminate legitimate workplace issues

• Implement “pro-active” and “best response” policies and practices

• Update employee handbooks and policies, including no solicitation/distribution rules

• Consider peer review system and other alternative dispute resolution mechanisms

• Consider whether the Executive Orders apply to your company

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Employer Strategies -- Next Steps

• Conduct new, focused training for legal, HR and management on labor and other workplace law developments

• Assess status of “supervisors” under the NLRA and consider adjustments based upon preferred designation

• Consider a specially trained legal/HR/management team to respond quickly and lawfully to union activity

• For employee communications, consider the vehicles (e.g., orientation, annual meetings, video, e-mail, etc.), and approach (e.g., significant v. little or no discussion of labor philosophy, issue-free approach, informed choice, union cards, etc.)

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Employer Strategies -- Next Steps

• For full or partially unionized employers, anticipate union corporate campaign approach (media outreach, political involvement, neutrality requests, etc.) in negotiations

• For union-free employers, develop plan for high level neutrality requests

• Consider a “break the glass” kit to be ready for responding to union organizing

• Conduct a bargaining unit analysis to establish the preferred units from an employer perspective

• Review the list of likely NLRB adjudication/rulemaking changes to determine other pro-active steps your organization can take now

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Employer Strategies -- Next Steps

THANK YOU!

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