Organized Labor: The Employee Free Choice Act And More Mark J. Neuberger Foley & Lardner LLP, Miami Office 1
The Current State of American Unions � Shift from a manufacturing to a service based economy � Globalization of the workforce made possible through technology and free trade � Rates of unionization in the private sector have never been lower The Current State of American Unions � Private Sector unionization has dropped to 7% from over 30% as recently as twenty years ago. � Unions main source of revenue is through dues � Other than healthcare, hospitality and janitorial, union membership has shrunk 2
The Current State of American Unions � Unions have not fared well under the past 2 presidents due to NAFTA, economy and conservative NLRB � Courts have not been kind � Perception that the process is skewed in favor of management � Despite this, unions win roughly 50% of the elections held Politics Inside and Outside The Unions � 2005 split between AFL-CIO and formation of Change to Win Coalition � Split was over organizing vs. politics � But you would never know that today 3
The Current Legal Process � A showing of interest through signed authorization cards triggers � Voluntary recognition by the employer OR � Secret ballot election conducted by NLRB � After certification of the union, 1 year to try to get contract before decertification can be filed The Employee Free Choice Act � A/K/A The Card Check law � Does away with secret ballot elections � A union would be installed as the workers’ representative if a majority of a given company’s employees signed cards indicating they favored the union 4
The Employee Free Choice Act � No Campaign for 41 days � Employer may never know an organizing drive is occurring It Gets Worse… � After certification, parties will have 90 days to negotiate a first contract � If no contract is reached it is referred to mandatory mediation with the Federal Mediation and Conciliation Service � 30 days later, mandatory arbitration if union and employer cannot strike a deal 5
It Gets Worse… � Increased penalties for employers who violate workers’ right to organize � No corresponding increase in penalties for unions that violate the law Employee Free Choice Act � H.R. 800 Passed in the House in March, 2008 by a vote 241-185 � S. 1041 only had 51 votes in the Senate � Did labor deliver Michigan, Wisconsin, Ohio, Pennsylvania and even Florida to Obama? 6
But Wait, There’s More! � Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers Act OR � R-E-S-P-E-C-T � Would amend the definition of who qualifies as a supervisor under the NLRA Respect Act � Designed to overturn recent U.S. Supreme Court Decision � Impacts working supervisors such as Registered Nurses, Construction Foremen, Office Supervisors � Broadens the scope of an appropriate bargaining unit; requires that a worker spend the majority of his/her time supervising other employees 7
Is The Work World As We Know It Coming To An End? � Not if you take control! � What you should be doing right now � Get up to speed on the current law � Learn what unions are doing now and how they organize now � Train you management Taking Control � The most vulnerable point in your company’s defense is your first line of supervision � Train them in how to properly supervise and communicate with their employees � Train them to understand why and how unions organize and the do’s and don’ts. 8
Taking Control � Get involved in the political process either directly or indirectly through industry, trade and professional associations � These things are not a certainty � The political process is ripe for compromise Taking Control � Get top management buy-in � Establish practices that make unions unnecessary – A real and meaningful grievance process – Not “We have an open door policy” – Survey the workplace attitude – Not a suggestion box in the lunch room – Sell the “benefits” of working for your company – If your company is a lousy place to work make it better 9
Taking Control � Analyze your vulnerability – Consider use of "focus groups" or other means to obtain employee feedback in order to get clear perception of employee attitudes. – Deal with problem areas identified promptly and proactively. � Consider changes if needed � Develop means for employees to have sufficient feedback/involvement in issues that impact their daily working activities. Predictions � How soon change comes depends on the economy and other legislative priorities � In the private sector, unions are coming up for their last gasp of air � Even if no law passes, they will be desperate for more members 10
UNIONS WILL WANT PAYBACK Look At The Early Indicators � The Transition Team � Economic Policy during the campaign was driven by Clintonians…will that change? � Who will be the next Secretary of Labor? Anna Burger, some economist or labor lawyer? 11
Conclusions � CHANGE IS HERE � YOU CAN TAKE CONTROL NOW or � YOU CAN LET THE TIDAL WAVE OF CHANGE CARRY YOU � THE PROCESS IS MANAGEABLE IF YOU HAVE KNOWLEDGE AND JUST A LITTLE BIT OF RESOURCE QUESTIONS? 12
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