Post on 27-May-2015
STAYING UNION-FREEIN A PRO-UNION WORLD
Presented By:Phillip B. Russell, Esq.Ogletree, Deakins, Nash, Smoak & Stewart100 N. Tampa Street, Suite 3600Tampa, Florida 33602Ph.: 813.289.1247 Fax: 813.289.6530phillip.russell@ogletreedeakins.com
Great Expectations
“What a difference a pro-workerCongress and pro-workerPresident make.”
Anna Burger
SEIU Secretary/Treasurer
Executive Orders
Obama issued four pro-Labor ExecutiveOrders in the first month of his presidency. Requiring employers to post notice of right to
organize
Employers cannot use federal money to stay union-free
Successor projects – must recognize existing union
Encouraging project labor agreements onConstruction Projects
Union MembershipPercentage of TOTAL U.S. Workforce
12.912.5
12.112.4 12.3
13.313.513.913.914.1
14.5
15.515.8
16.1
16.8
17.5
25.1
18.8
23.2
21.9
11.0
14.0
17.0
20.0
23.0
26.0
'78 '80 '82 '84 '86 '88 '90 '92 '94 '96 '97 '98 '99 '01 '02 '03 '05 '07 '08 '09
Union MembershipPercentage of PRIVATE U.S. Workforce
8.98.5
8.27.9 7.8
7.4 7.5 7.67.4
9.09.49.5
9.7
10.2
10.911.2
11.511.9
12.4
12.9
16.8
13.4
15.5
14.0
6.0
7.0
8.0
9.0
10.0
11.0
12.0
13.0
14.0
15.0
16.0
17.0
'83 '84 '86 '87 '88 '89 '91 '92 '93 '94 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09
NLRB R-Case Elections
141
893
1,089
950
1,030
1,294
1,314
1,351
1,515
1,370
1,541
Union Wins
2152010*
1,2992009
1,6102008
1,5332007
1,6572006
2,0982005
2,2422004
2,3132003
2,6392002
2,4902001
2,8762000
ElectionsYear
66
69
68
62
62
62
59
58
57
55
54
%
What Happened to EFCA?
Health care fight took priority
Unions took “wait and see” approach
EFCA lost support
Congress’ makeup changed
How Will Unions OrganizeNew Members Now?
They will rely on a “new and improved” NLRB
They will place greater emphasis on pursuingstate and federal legislation to advance theirinterests
They will continue to pursue traditionalstrategies that have worked (salting,corporate campaigns, well-trained organizers,etc.)
THE NEW NLRB(Democrat Majority Through Recess Appointments)
The New & Improved NLRB
How can we predict whatthey will do?
Their articles and statements
speak volumes.
According to Wilma Liebman…
“Even in its original form, EFCAdoes not represent comprehensivelabor-law reform. What itrepresents, rather, is the prospectof an end to the ossification of ourlaw.”
According to Wilma Liebman…
“It’s time to reinvigorate laborlaw.”
“The NLRB has become the Rip VanWinkle of administrativeagencies.”
According to Craig Becker…
“Similarly, employers should have no right to raisequestions concerning voter eligibility or campaignconduct. Because employers have no right to vote, theycast no ballots the significance of which can be dilutedby the inclusion of ineligible employees. … Becauseemployers lack the formal status either of candidatesvying to represent employees or voters, they shouldnot be entitled to charge that unions disobeyed therules governing voter eligibility or campaign conduct.On the questions of unit determination, votereligibility, and campaign conduct, only the employeeconstituency and their potential union representativesshould be heard.”
How The New NLRB May HelpUnions Do Better
Extending Statutory Coverage (to individualscurrently viewed as “supervisors”)
Giving quickie elections
Protecting union contracts when businesseschange hands
Expanding the use of harsh remedies forreported violations of the NLRA
How The New NLRB May HelpUnions Do Better
Granting union access to employees andemployee information
Restricting pre-election unit determinations
Restricting employer communications, policiesand rules (impacting employee unionactivities)
Removing obstacles to organizing contingentworkers
What State Legislation?
Unions have effectively used their politicalinfluence to pass laws banning mandatorymeetings
– Oregon, New Jersey and the Virgin Islandsdid it
– Michigan and New Hampshire are in theprocess (“Worker Freedom Act”)
– Colorado’s Governor vetoed their bill
Energized, Focused andOptimistic
Proactive Steps: The Time ForEmployers To Act Is Now
Plan for a quickie union campaign
Communicate the company’s position onunionization
Train front-line supervisors
Review and establish proper evidence tocreate the “optimal unit”
Review the supervisory structure and reviseas necessary to properly exclude“supervisors” from the employee unit
Proactive Steps: The Time ForEmployers To Act Is Now
Conduct vulnerability assessments to gaugethe company’s exposure to unionization at“hot spots”
Conduct legal audits to ensure compliancewith EEO, FLSA, OSHA and other legalstandards
Train employees on policies, open door,complaint procedures, etc.
Consider implementing an ADR/PeerReview program
Proactive Steps: The Time ForEmployers To Act Is Now
Review policies for legal and practicalsufficiency
Assess campaign resources (management,PR, etc.)
Establish meaningful communityrelationships
Establish a culture of fairness from the topdown
Proactive Steps: The Time ForEmployers To Act Is Now
Maximize employee involvement inworkplace decisions, hiring and terminationreviews (e.g., peer review)
Make sure employees feel they have a“voice at work”
Establish a written positive employeerelations program with assignments,calendared dates of execution andaccountability
Communicate accomplishments
Presented By:
Phillip B. Russell, Esq.Ogletree, Deakins, Nash, Smoak & Stewart100 N. Tampa Street, Suite 3600Tampa, Florida 33602813.289.1247Phillip.russell@ogletreedeakins.com
STAYING UNION-FREEIN A PRO-UNION WORLD