Union-Employer Relations in a New Era December 16, 2008 12:00 pm – 1:30 pm ET

Truckload Academy Audio Conference Union-Employer Relations in the New Era: Organizing, “Card Check” (EFCA) and Other Pending Legislation - - Are You Ready? December 16, 2008 Presented by: TCA General Counsel R. Eddie Wayland King k Ballow Law Firm Nashville Office: 1100 Union Street Plaza 315 Union Street Nashville, Tennessee 37201 Office: (615) 259-3456 Fax: (615) 254-7907 San Diego Office: La Jolla Eastgate 9404 Genesee Avenue, Suite 340 La Jolla, California 92037 Office: (858) 597-6000 Fax: (858) 597-6008

The New Political Climate USA Today, Thursday, November 6, 2008 “But make no mistake, organized labor spent hundreds of millions of dollars on behalf of Obama and other Democratic candidates with one clear goal: passage of the Employee Free Choice Act, a measure that is likely to come up early in the new Congress” The Washington Times, Thursday, November 20, 2008 “I have no doubt it [the Employee Free Choice Act] will pass [Congress] and will be signed [by President Obama].” “Restoring the right to bargain is a key to fixing the economy…we’ve spoken to [Mr. Obama], and think he sees it the same way” - Quoting William Samuel, AFL-CIO Government-Affairs Director

Employee Free Choice Act (EFCA) More than card check legislation Three parts to EFCA 1. Card check 2. Bargaining requirements 3. Enhanced backpay and penalties

2009 Congress EFCA will be re-introduced in 2009 House of Representatives – will likely pass again Senate – 58 or 59 Democrats - indicated support for EFCA

The New Administration “Change is having a President who…lets unions do what they do best and organize our workers…and who will finally make the Employee Free Choice Act the law of the land.” - Presidential Candidate, Barack Obama

Card Check - Current Law Since 1935 Union seeks signed authorization cards Request employer to voluntarily recognize Employer has no obligation to voluntarily recognize based on cards Union files election petition Employer campaigns NLRB conducts a secret-ballot election Union must win majority of votes cast

Proposed EFCA Union solicits authorization cards If union gets a majority of cards and presents to NLRB, NLRB will certify union to represent employees Union intimidation and coercion to get employees to sign authorization cards Will be little or no opportunity for employees to hear from employer on the perils of unionization

Union Authorization Cards AUTHORIZATION FOR REPRESENTATION I hereby authorize the _____________ Union to represent me for the purposes of collective bargaining. Print Name Date Signature Home Phone Home Address City State Zip Employer’s Name Address Hire Date Type Work Performed Department Hourly Rate Day Off Day Shift Full Time Night Part Would you participate in an organizing committee?

Union Authorization Cards

Bargaining - Current Law Since 1935 Bargaining begins within a reasonable period after election - no set date for beginning Each party makes proposals - each can reject other's proposals If no contract reached: Union may strike Employer can lock-out If impasse, Employer may implement its proposals Parties not required to arbitrate

Proposed EFCA Must start bargaining within 10 days of union's initial request to bargain If no final contract reached in 90 days, FMCS is requested to mediate

Proposed EFCA If no final contract reached in mediation - -bargaining submitted to arbitration ARBITRATOR DECIDES final terms of binding two-year contract, including wage rates, benefits and terms of employment Employers could be forced to grant wage increases Employers could be forced to grant additional benefits Employers could be forced into union multi-employer pension and/or benefit plans

Remedies - Current Law Since 1935 Unlawfully discharged employees owed backpay No civil penalties for violations of NLRA

Proposed EFCA Backpay enhanced to include double liquidated damages for unlawful discharge during union organizing or before initial contract Thus, employees receives triple backpay Employers subject to civil penalties of up to $20,000 per violation of Section 8(a)(1) or (3) if committed during union organizing or before initial contract

QUESTIONS and ANSWERS

Proposed “RESPECT” Act Initially introduced in March, 2007 164 co-sponsors in the House 31 co-sponsors in the Senate To be re-introduced in 2009 Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act would amend NLRA to revise statutory definition of “supervisor” would make it more difficult to have individuals classified as supervisors

Current Law A statutory “supervisor” is not an “employee” under the NLRA Excluded from the bargaining unit and coverage under a union contract Avoids situation where a management supervisor is also represented by the union and included under same union contract as the employees being supervised Current NLRA Definition “The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay-off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the forgoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

Proposed “RESPECT” Act Would amend the statutory definition of supervisor would provide that “supervisor” must perform specified duties “for a majority of the individuals’ work time” would delete the duty to “assign” employees would delete the duty to “responsibly direct” employees Essential role of most supervisors is managing and directing other employees’ work and assignments Very few supervisors spend a majority of their time only hiring, transferring, disciplining, promoting, rewarding or adjusting employee grievances

Proposed “RESPECT” Act Would provide for union representation of core management/supervisors Would result in divided loyalties for supervisors possible actions based on union politics or preferred work rules rather that company considerations possible internal union discipline of represented supervisors for not complying with union positions or directions possible supervisory retaliation, coercion or intimidation of bargaining unit employees who oppose or disagree with the union

Employer Responses/Actions Legislation not passed yet. Need to be actively involved and help oppose such legislation individually through associations/groups Support political lobbying/legislative efforts

Organizations Fighting EFCA Prominent organizations/associations opposing this legislation include: Truckload Carriers Association (TCA) American Trucking Associations (ATA) U.S. Chamber of Commerce National Federation of Independent Business (NFIB) Associated Builders and Contractors (ABC) American Hotel and Lodging Association National Right to Work Committee Center for Union Facts Human Resources Policy Association Coalition for a Democratic Workplace

QUESTIONS and ANSWERS

New Union Activity/Organizing Regardless of new legislation, new and increased union activity is on the horizon Political changes will enhance and foster union activity - Appointment of new NLRB members Appointment of new NLRB General Counsel New and revised Presidential Executive Orders New leadership and philosophy of government agencies

Employer Responses/Actions The time to prepare is now: Audit Company vulnerability to unionization Review and clearly define Company’s philosophy and stance on unionization Review, update and implement Company policies work rules and procedures Consider proactive measures and approaches to help maintain a union-free workplace. Focus on management/supervisors Identify and define “supervisor” Train supervisors and managers Educate managers and supervisors Empower supervisors and managers

Employer Responses/Actions The time to prepare is now: 6. Educate all employees – About authorization cards, what they are and what they really mean About the Company’s philosophy and expectations About why a union is not in the best interests of the Company or the employees About the things the union does not want them to know or will not tell them Empower employees Develop and implement a long term communications plan and strategy Review business structure and organization for possible changes/revisions Be proactive - - focus and devote the time and resources necessary to effectively address the issues and prepare Do not let your Company be a union’s “low hanging fruit”

QUESTIONS and ANSWERS