The 2008 The 2008 Election: Election:
The Political The Political Impact on the Impact on the HR Function HR Function
and Labor Lawand Labor LawPresented byPresented by
Mason AlexanderMason AlexanderFisher & Phillips llpFisher & Phillips llpwww.laborlawyers.comwww.laborlawyers.com
No, It’s Not That BadNo, It’s Not That Bad
But things are going to be differentBut things are going to be different A new AdministrationA new Administration A new CongressA new Congress A new Labor BoardA new Labor Board New priorities for other agencies, like New priorities for other agencies, like
the EEOC, Wage & Hour, and OSHAthe EEOC, Wage & Hour, and OSHA
America Voted For Change…America Voted For Change…(And Employers Are Going To Get It)(And Employers Are Going To Get It)
Labor contributed money and resources in amounts never seen before
A pro-labor Democrat was elected President by a wide margin
Democrats gained more seats in the House
Democrats picked up at least seven seats in the Senate
Labor has a lot of chits to cash in
THE EMPLOYEE FREE THE EMPLOYEE FREE CHOICE ACTCHOICE ACT
Number One Legislative Priority of Number One Legislative Priority of
AFL-CIO:AFL-CIO:
(Losers always want to change rules.)(Losers always want to change rules.)
The SenateThe Senate
EFCA can both housesEFCA can both houses The Republicans have threatened a The Republicans have threatened a
Senate filibusterSenate filibuster Today the Democrats have 58 seatsToday the Democrats have 58 seats Republicans have 41 seatsRepublicans have 41 seats One Republican has supported EFCAOne Republican has supported EFCA And one race in Minnesota is in the And one race in Minnesota is in the
courtscourts
And Yesterday…An EarthquakeAnd Yesterday…An Earthquake
Arlen Specter, (R-PA) had previously Arlen Specter, (R-PA) had previously supported EFCA, but he announced supported EFCA, but he announced that he is going to oppose it this year that he is going to oppose it this year due to the weak economydue to the weak economy
Specter said that he supports other Specter said that he supports other pro-labor amendments to the NLRApro-labor amendments to the NLRA
If they don’t work, then he will support If they don’t work, then he will support EFCA when the economy improvesEFCA when the economy improves
Can Labor Defeat the Filibuster?Can Labor Defeat the Filibuster?
Not without a Republican voteNot without a Republican vote Lisa Murkowski (R. Alaska)Lisa Murkowski (R. Alaska)
• Up for reelection in 2010Up for reelection in 2010• May be challenged in the Republican May be challenged in the Republican
primary by Sarah Palinprimary by Sarah Palin• Murkowski needs alliesMurkowski needs allies• Labor is powerful in AlaskaLabor is powerful in Alaska• Can you see where this could be Can you see where this could be
heading?heading? Stay Tuned!Stay Tuned!
EFCA Has Been Around For Two EFCA Has Been Around For Two Years…Years…
And no one was paying attentionAnd no one was paying attention It never came up in a debateIt never came up in a debate Neither campaign made it an issueNeither campaign made it an issue Business was complacentBusiness was complacent But now both sides are scramblingBut now both sides are scrambling
We Don’t See Labor’s Campaign We Don’t See Labor’s Campaign for EFCA, but Senators Dofor EFCA, but Senators Do
If EFCA PassesIf EFCA Passes No more secret ballot electionsNo more secret ballot elections Once the union gets over half of Once the union gets over half of
employees to sign cards, the union is inemployees to sign cards, the union is in Interest arbitration is more dangerous Interest arbitration is more dangerous
than card checkthan card check• Guarantees unions a first contractGuarantees unions a first contract• Takes away employers’ best argumentsTakes away employers’ best arguments
Collective BargainingCollective Bargaining StrikesStrikes
But What If The Democrats Cannot But What If The Democrats Cannot Pass EFCA?Pass EFCA?
Business is mobilizing to stop the Business is mobilizing to stop the EFCAEFCA
The focus of the campaign is on the The focus of the campaign is on the loss of the secret ballotloss of the secret ballot
Labor is preparing its fallback positionLabor is preparing its fallback position Labor will compromise if it has to, in Labor will compromise if it has to, in
order to get changes in the law that order to get changes in the law that make it easier to organizemake it easier to organize
It Won’t Look Good To Us!It Won’t Look Good To Us!Compromise Version One:Compromise Version One:The Specter CompromiseThe Specter Compromise
Election within 10 days of joint petitionElection within 10 days of joint petition• If no joint petition, then the NLRB has 21 days If no joint petition, then the NLRB has 21 days
to decide voter eligibility and the vote would to decide voter eligibility and the vote would be 7 days laterbe 7 days later
If the company holds a meeting with If the company holds a meeting with employees, the union gets equal time and employees, the union gets equal time and access to company propertyaccess to company property
Mediation if no contract within 120 daysMediation if no contract within 120 days Much stiffer penaltiesMuch stiffer penalties
““National Labor Relations National Labor Relations Modernization Act”Modernization Act”
Compromise Version TwoCompromise Version Two Secret Ballot is maintainedSecret Ballot is maintained Union access to company property Union access to company property
and employeesand employees• If we give a talk, the union gives a talkIf we give a talk, the union gives a talk• If we meet with Jack and Mary, the union If we meet with Jack and Mary, the union
meets with Jack and Marymeets with Jack and Mary Interest arbitrationInterest arbitration
The Starbucks CompromiseThe Starbucks Compromise
Compromise Version ThreeCompromise Version Three Promoted by three companiesPromoted by three companies The secret ballot system remainsThe secret ballot system remains But if the union gets 70% of the But if the union gets 70% of the
cards signed, then the union is cards signed, then the union is automatically inautomatically in
The impact – there will never be The impact – there will never be another electionanother election
Here is the ProblemHere is the Problem
Opposition to EFCA is focused solely Opposition to EFCA is focused solely on the on the secret ballotsecret ballot issue issue
That gives opponents the moral high That gives opponents the moral high ground – for nowground – for now
But if Labor agrees to keep the But if Labor agrees to keep the secret ballot, what is the basis for secret ballot, what is the basis for continuing the opposition?continuing the opposition?
For moderates in both parties, it For moderates in both parties, it disappearsdisappears
Section 14(b) of the Taft-Hartley Section 14(b) of the Taft-Hartley ActAct
Allows states to pass “Right-to-Work” Allows states to pass “Right-to-Work” LawsLaws
These laws prohibit companies and These laws prohibit companies and unions from entering into “union unions from entering into “union security agreements,” which force security agreements,” which force new employees to join the union or new employees to join the union or be firedbe fired
In short, in a right to work state, no In short, in a right to work state, no one can be forced to join a union.one can be forced to join a union.
The End of 14(b)The End of 14(b)
IN THE HOUSE OF REPRESENTATIVESIN THE HOUSE OF REPRESENTATIVESJuly 10, 2008July 10, 2008
Mr. SHERMAN (for himself, Mr. ELLISON, Ms. SCHAKOWSKY, Mr. SHERMAN (for himself, Mr. ELLISON, Ms. SCHAKOWSKY, Mr. DAVIS of Illinois, Ms. SUTTON, and Mr. HARE) introduced Mr. DAVIS of Illinois, Ms. SUTTON, and Mr. HARE) introduced the following bill; which was referred to the Committee on the following bill; which was referred to the Committee on Education and Labor Education and Labor
A BILLA BILL To repeal a limitation in the Labor-Management Relations To repeal a limitation in the Labor-Management Relations
Act regarding requirements for labor organization Act regarding requirements for labor organization membership as a condition of employment. membership as a condition of employment.
Be it enacted by the Senate and House of Representatives of Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,the United States of America in Congress assembled,
SECTION 1. REPEAL.SECTION 1. REPEAL.Section 14 of the Labor-Management Relations Act (29 U.S.C. Section 14 of the Labor-Management Relations Act (29 U.S.C.
164) is amended by striking subsection (b) and 164) is amended by striking subsection (b) and redesignating subsection (c) as subsection (b).redesignating subsection (c) as subsection (b).
RESPECT ActRESPECT Act Changes NLRA definition of Changes NLRA definition of
“supervisor”“supervisor” Pushed by unionsPushed by unions Will cause employers problemsWill cause employers problems To be a supervisor, one must To be a supervisor, one must
actually spend more than half of the actually spend more than half of the time engaged in supervisory time engaged in supervisory functions other than assigning workfunctions other than assigning work
The Importance of SupervisorsThe Importance of Supervisors
Supervisors are an employer’s foot Supervisors are an employer’s foot soldiers during a union organizing soldiers during a union organizing campaigncampaign
They carry the message They carry the message They provide intelligenceThey provide intelligence Often employers struggle because their Often employers struggle because their
supervisory ranks are so thin, they do not supervisory ranks are so thin, they do not have enough to run an effective campaignhave enough to run an effective campaign
Usually one supervisor to every twenty-Usually one supervisor to every twenty-five employees worksfive employees works
Under the RESPECT Act…Under the RESPECT Act…
Your current front line supervisors Your current front line supervisors will probably not be considered will probably not be considered managementmanagement
You cannot insist on their loyaltyYou cannot insist on their loyalty You cannot ask them how particular You cannot ask them how particular
employees feel about the unionemployees feel about the union You cannot tell them to campaign for You cannot tell them to campaign for
the companythe company
Under the RESPECT Act…Under the RESPECT Act…
So who can you use to run your So who can you use to run your campaign?campaign?
Will you have enough “supervisors” Will you have enough “supervisors” under the new standardunder the new standard
If not, what is your plan?If not, what is your plan?
The Patriot Employer ActThe Patriot Employer Act(because some employers are more equal than others)(because some employers are more equal than others)
Patriot Employer ActPatriot Employer Act““Patriot” employers are those Patriot” employers are those
whowho Pay at least 60% of medical Pay at least 60% of medical
insuranceinsurance Provide a pension planProvide a pension plan Don’t outsource work overseasDon’t outsource work overseas Agree to “neutrality” in union Agree to “neutrality” in union
drivesdrives
The “Patriot Employer ActThe “Patriot Employer Act””
The reward for such “patriotism”: The reward for such “patriotism”: A tax credit of one percent of A tax credit of one percent of taxable income. taxable income.
The federal government would The federal government would
create two tax rates for create two tax rates for companies, companies, a favorable one for a favorable one for union employers, and an union employers, and an unfavorable one for those who unfavorable one for those who operate non-unionoperate non-union
The Impact of The Patriot Employer The Impact of The Patriot Employer ActAct
Will it encourage more companies to Will it encourage more companies to surrender to Labor?surrender to Labor?• Probably notProbably not
But, it gives unionized companies an But, it gives unionized companies an advantage over their non-union advantage over their non-union competitors competitors
And that is the pointAnd that is the point
Public Safety Employer-Employee Public Safety Employer-Employee Cooperation Act of 20007Cooperation Act of 20007
A Huge Benefit for Police and Firefighters A Huge Benefit for Police and Firefighters UnionsUnions
Public Safety Employer-Employee Public Safety Employer-Employee Cooperation Act of 20007Cooperation Act of 20007
Applies to states, counties, and Applies to states, counties, and municipalitiesmunicipalities
Requires that these bodies recognize Requires that these bodies recognize the right of public safety employees the right of public safety employees to organizeto organize
Public safety employees include:Public safety employees include:• Law enforcement officersLaw enforcement officers• Fire FightersFire Fighters• EMT’s, Ambulance Drivers, First EMT’s, Ambulance Drivers, First
RespondersResponders
The Impact of this LawThe Impact of this Law
It is not so much about organizing It is not so much about organizing first responders as it is about first responders as it is about changing state laws that prohibit changing state laws that prohibit state and local employees from state and local employees from organizingorganizing
It is the camel’s nose…It is the camel’s nose…
How Does This All Fit TogetherHow Does This All Fit Together
The key convergence is the EFCA and the The key convergence is the EFCA and the Respect ActRespect Act
By taking supervisors out of the game, By taking supervisors out of the game, Labor makes it easier to get the cards Labor makes it easier to get the cards signed before you know anythingsigned before you know anything
And makes it harder to respond quickly And makes it harder to respond quickly and effectivelyand effectively
The other bills are just things that Labor The other bills are just things that Labor wants and but are not a significant threatwants and but are not a significant threat
But There Is MoreBut There Is More
The National Labor The National Labor Relations Board has five Relations Board has five membersmembers
Presently three of the Presently three of the five seats are vacantfive seats are vacant
The new administration The new administration can give control of the can give control of the Board to Labor as soon Board to Labor as soon as the Senate can as the Senate can confirm the new confirm the new membersmembers
What Can We Expect From The What Can We Expect From The New BoardNew Board
Changes in the rules on temporary Changes in the rules on temporary employeesemployees• Presently they cannot be included in the same Presently they cannot be included in the same
bargaining unit as regular employees unless bargaining unit as regular employees unless the agency and the client company agreethe agency and the client company agree
• That will change That will change They will be able to vote (or sign cards)They will be able to vote (or sign cards)
New rules implementing the EFCANew rules implementing the EFCA Very aggressive enforcementVery aggressive enforcement
What Is The ApproachWhat Is The Approach
Stealth – Stealth – Stealth!Stealth – Stealth – Stealth! They don’t want you to know they are They don’t want you to know they are
there until it is too latethere until it is too late
The Things You Will The Things You Will NotNot See See
HandbillingHandbilling Union organizers lurking aroundUnion organizers lurking around Union Literature in the workplaceUnion Literature in the workplace Union cards in the workplaceUnion cards in the workplace Union hats, t-shirts, etc.Union hats, t-shirts, etc. Confrontational tactics by union Confrontational tactics by union
pusherspushers
So How Will They Do It?So How Will They Do It?
The InternetThe Internet• EmailEmail• Social Networking sitesSocial Networking sites• Special campaign websitesSpecial campaign websites
Quiet conversationsQuiet conversations Meetings off siteMeetings off site Telephone callsTelephone calls Home visitsHome visits They will not be where we are, but will be They will not be where we are, but will be
where we are notwhere we are not
So What Can We Do?So What Can We Do?
The situation is not The situation is not hopelesshopeless
But the battlefield will But the battlefield will changechange
The old tactics won’t work The old tactics won’t work anymoreanymore
And whether the system is And whether the system is card check or quickie card check or quickie election, we use the same election, we use the same strategystrategy
This Means Hire The Right PeopleThis Means Hire The Right People
Check referencesCheck references Study the application for anything Study the application for anything
that doesn’t make sensethat doesn’t make sense Interview carefullyInterview carefully Do drug and criminal background Do drug and criminal background
checkschecks DO NOT HIRE ATTITUDE PROBLEMS!DO NOT HIRE ATTITUDE PROBLEMS!
It Means Correct Hiring Mistakes It Means Correct Hiring Mistakes QuicklyQuickly
Use your probationary periodUse your probationary period Look for marginal attendance and Look for marginal attendance and
performanceperformance Look for attitude problemsLook for attitude problems Make a “second hiring decision”Make a “second hiring decision” Presume the person will not be Presume the person will not be
rehired and make the supervisor rehired and make the supervisor justify keeping the person justify keeping the person
Fire Bad EmployeesFire Bad Employees
Do not keep marginal employeesDo not keep marginal employees Do not keep the “genetically Do not keep the “genetically
unhappy”unhappy” If you have people like that, develop If you have people like that, develop
a plan for eacha plan for each You should follow procedures, but You should follow procedures, but
you should have some sense of you should have some sense of urgencyurgency
Second, We Must Address Second, We Must Address The Reasons People The Reasons People
Choose UnionsChoose UnionsPoor CommunicationsPoor CommunicationsTreatment Treatment IssuesIssues
Management’s View Of Management’s View Of CommunicationCommunication
We talk with employeesWe talk with employees We keep them up to date on the businessWe keep them up to date on the business We tell employees that we are good peopleWe tell employees that we are good people We tell employees that we care about themWe tell employees that we care about them
We have a newsletterWe have a newsletter We have an employee who can We have an employee who can
translate into Spanish for us translate into Spanish for us
An Employee’s View of An Employee’s View of CommunicationsCommunications
The company listens to meThe company listens to me The company likes to get my opinion The company likes to get my opinion
before it makes a big changebefore it makes a big change The supervisor tells me the truthThe supervisor tells me the truth The company thanks me when I work The company thanks me when I work
hardhard The company The company actsacts like it cares like it cares The company has supervisors who The company has supervisors who
are fluent in Spanishare fluent in Spanish
How An Open Door Policy FailsHow An Open Door Policy Fails
Employees don’t think that the Employees don’t think that the door is really opendoor is really open
They don’t feel free to pop in on They don’t feel free to pop in on the facility manager or the HR the facility manager or the HR managermanager
They don’t think that you care They don’t think that you care about their problems, so they don’t about their problems, so they don’t bother to tell youbother to tell you
How An Open Door Policy FailsHow An Open Door Policy Fails
Employees think managers are Employees think managers are Labrador RetrieversLabrador Retrievers
The door is open but it does not The door is open but it does not produce resultsproduce results
Employees conclude the open Employees conclude the open door is a waste of timedoor is a waste of time
What can I do for
you, Bill?
TreatmentTreatment
““Management Style” can no longer be an Management Style” can no longer be an excuse for yelling at an employee or excuse for yelling at an employee or embarrassing him in front of peersembarrassing him in front of peers
We must avoid the perception of We must avoid the perception of favoritismfavoritism
We must follow policy consistentlyWe must follow policy consistently We must hold supervisors accountable We must hold supervisors accountable
who do notwho do not• This means writing them upThis means writing them up
Every Workplace Has IssuesEvery Workplace Has Issues
If you could fix them all today, in six If you could fix them all today, in six months, there would be more issuesmonths, there would be more issues
Every unresolved issue will be used by the Every unresolved issue will be used by the unionunion
The union will promise that it can fix the The union will promise that it can fix the issueissue
The union will claim that if it had been in The union will claim that if it had been in place, the issue would have been avoidedplace, the issue would have been avoided
This is not exactly the truth, but people This is not exactly the truth, but people may believe itmay believe it
So What Does This Mean?So What Does This Mean?
It means that every unresolved issue It means that every unresolved issue is a rock the union will throw at usis a rock the union will throw at us
Every resolved issue is proof that we Every resolved issue is proof that we can work with employees to resolve can work with employees to resolve issues without a unionissues without a union
So every resolved issue is a rock we So every resolved issue is a rock we can throw at the unioncan throw at the union
And we want to have the big rock pileAnd we want to have the big rock pile
How Do We Do This?How Do We Do This?
We need a program for identifying issues We need a program for identifying issues as they ariseas they arise
The issues need to be communicated up The issues need to be communicated up the chain of commandthe chain of command
A decision needs to be made as to what A decision needs to be made as to what can be done and who will do itcan be done and who will do it
A deadline for action should be establishedA deadline for action should be established The manager should be held accountableThe manager should be held accountable
Third, We Must Effectively Third, We Must Effectively Tell Employees Why A Tell Employees Why A Union Is A Bad IdeaUnion Is A Bad Idea
Traditionally, Many Employers Have Traditionally, Many Employers Have Not Wanted To Use the “U” WordNot Wanted To Use the “U” Word
They figured that if they talked about They figured that if they talked about unions…unions…• Employees would think the company Employees would think the company
was running scaredwas running scared• Employees would start signing cardsEmployees would start signing cards
That won’t be an option if a company That won’t be an option if a company hopes to remain non-union under the hopes to remain non-union under the EFCA or a quickie election systemEFCA or a quickie election system
How Do We Start Talking About How Do We Start Talking About Unions?Unions?
We just startWe just start And once you start, it isn’t hardAnd once you start, it isn’t hard But how can you get started?But how can you get started? Maybe you pick something that is in Maybe you pick something that is in
the news and begin talking about the news and begin talking about thatthat
How About The Auto IndustryHow About The Auto Industry
GM, Ford, and Chrysler (UAW companies) GM, Ford, and Chrysler (UAW companies) need bailouts to stay in businessneed bailouts to stay in business• No one is talking about Toyota filing for No one is talking about Toyota filing for
bankruptcybankruptcy Which employees have more job security?Which employees have more job security?
• Honda employees or GM employees?Honda employees or GM employees? And why is it that so many unionized And why is it that so many unionized
companies struggle?companies struggle?
How about EFCA?How about EFCA?
Tell employees what is going onTell employees what is going on Explain that the unions are trying to take Explain that the unions are trying to take
the secret ballot away from working the secret ballot away from working AmericansAmericans
Whose side are the unions on?Whose side are the unions on? Why are the unions afraid of a secret Why are the unions afraid of a secret
ballot election?ballot election? Can you trust someone who wants to deny Can you trust someone who wants to deny
you the most important right any you the most important right any American has?American has?
When Should We Talk About When Should We Talk About UnionsUnions
At orientationAt orientation At least once a quarterAt least once a quarter Whenever we can find an excuseWhenever we can find an excuse If we are comfortable talking about If we are comfortable talking about
unions, then employees will come to unions, then employees will come to us with questionsus with questions
Remember, when the cards are Remember, when the cards are passed around, you may be out of passed around, you may be out of time…time…
The Signs Of Union Activity Will Be The Signs Of Union Activity Will Be SubtleSubtle
Your supervisors must be able to Your supervisors must be able to spot themspot them
Your supervisors must be able to Your supervisors must be able to respond to union activity respond to union activity immediatelyimmediately
We may not have time for a lot of We may not have time for a lot of training at that pointtraining at that point
So you need to do it nowSo you need to do it now
What Must Supervisors KnowWhat Must Supervisors Know
How to pick up on union activityHow to pick up on union activity Why a union is a terrible idea for Why a union is a terrible idea for
your employeesyour employees And the supervisor must be And the supervisor must be
comfortable talking about unionscomfortable talking about unions• This means that supervisors need role This means that supervisors need role
play trainingplay training
Here is the SituationHere is the Situation
You have heard a rumor of union You have heard a rumor of union activityactivity
You don’t know how many cards they You don’t know how many cards they havehave
You may have two weeks to get out You may have two weeks to get out your messageyour message
You may have less than 24 hours…You may have less than 24 hours…
There Is No Time To WasteThere Is No Time To Waste
You must be able to respond todayYou must be able to respond today Do you have a plan?Do you have a plan? Is your talk already written?Is your talk already written? Have you decided how you will Have you decided how you will
conduct your meetings?conduct your meetings? Will you use a video?Will you use a video? Do you have a letter to the homes Do you have a letter to the homes
ready to go?ready to go?
You Need An Emergency You Need An Emergency Response PlanResponse Plan
Talks already scriptedTalks already scripted Letters already writtenLetters already written Postings ready to goPostings ready to go Checklists of everything to be doneChecklists of everything to be done Logistics of meetings resolvedLogistics of meetings resolved Mail merge list preparedMail merge list prepared Responsibilities assignedResponsibilities assigned
Today…Today…
It takes many It takes many companies a week to companies a week to respond – and respond – and sometimes moresometimes more
Tomorrow, union Tomorrow, union certification may be certification may be hours awayhours away
We must be prepared!We must be prepared!
Final Questions?Final Questions?
Mason AlexanderFisher & Phillips LLP227 W. Trade StreetCharlotte, NC 28277
704-334-4565
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