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

2. 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)
Fax: (615)
San Diego Office:
La Jolla Eastgate
9404 Genesee Avenue, Suite 340
La Jolla, California
Office: (858)
Fax: (858)

3. 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

4. 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

5. 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

6. 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

7. 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

9. 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

10. 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?

11. Union Authorization Cards

12. 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

13. 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

14. 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

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

16. 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

17. QUESTIONS and ANSWERS

18. 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

19. 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.”

20. 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

21. 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

22. 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

23. 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

24. QUESTIONS and ANSWERS

25. 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

26. 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

27. 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”

28. QUESTIONS and ANSWERS