It Ain’t Necessarily So: Labor Law Reform 2010 The Reality Beyond EFCA 1 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 OrganizingPetitionElection Post Election 2 2

Union Authorization Card 3 3

Secret Ballot Union Certification via NLRB Election National Labor Relations Board supervised secret ballot election – private vote 4 4

Probable Components of EFCA Compromise… No “card check” “Quickie” elections days from petition Enhanced remedies Possible “baseball style” arbitration for 1 st contracts Binding interest arbitration -- right or remedy Equal access to employees for unions 5

Possible EFCA Compromise OrganizingPetition Quickie Election Expedited Bargaining Caution: Employers will find it harder to win elections in days with union access and triple penalties. 6 6

Executive Orders – E.O NOTICES MUST BE POSTED ON RIGHT TO ORGANIZE 7 7

Other Executive Orders Favoring Unions  “NONDISPLACEMENT OF QUALIFIED WORKERS UNDER SERVICE CONTRACTS”- E.O Service contractor must offer jobs to prior contractor’s employees to help preserve the union and union jobs  “ECONOMY IN GOVERNMENT CONTRACTING”- E.O Contractor cannot use government funds to pay cost incurred for labor consultants, union-free training or lawful communications concerning unions  PROJECT LABOR AGREEMENTS - E.O Federal 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 8 8

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 9 9

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 BECKERTerm Expires 2011 Previously Assoc. General Counsel SEIU & AFL-CIO MARK PEARCE Term Expires 2011 Previously Partner at Creighton, Pearce, Johnson and Giroux Remaining Pending Nominee BRIAN HAYES Republican Staffer, Senate HELP Committee 10

The Fight Over Becker’s Nomination  July 9, Nominated by President Obama  October 21, Senator McCain places a hold on Mr. Becker’s nomination and insists on a public hearing  January 7, President Obama re-nominates Becker to the NLRB  February 2, Public hearing held before HELP committee on Becker nomination  February 10, Senate Democrats fail to invoke cloture on Becker’s nomination (52-33)  March 25, 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 11

New Labor Majority Wilma Liebman Current Chair of NLRB Dissented in employer favorable decisions of Bush Board, such as: – Restrictions on use of company 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 12

New Labor Majority Craig Becker Previously 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 13

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 14

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 15

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 systems  NLRB will likely restrict employer right to issue facially neutral non-harassment rules that could be seen as limiting union free speech 16

 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 17 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 18

Labor Law Developments + Corporate Campaign Approaches = New Labor Landscape  Unions Fighting Wall Street 19

 Unions In Health Care 20 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 21

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. 22

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 23 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, , etc.), and approach (e.g., significant v. little or no discussion of labor philosophy, issue-free approach, informed choice, union cards, etc.) 24 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 25 Employer Strategies -- Next Steps

THANK YOU! 26