Fisher & Phillips llpFisher & Phillips llpAndAnd

PresentPresent

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

Minnesota Is CriticalMinnesota Is Critical

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

Business Fights BackBusiness Fights Back

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

So What Would A “Compromise” So What Would A “Compromise” Look Like?Look Like?

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

More Legislative ChangesMore Legislative Changes

Repeal of Right To Work LawsRepeal of Right To Work Laws

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).

The Right To Work StatesThe Right To Work States

Change in the Definition of Change in the Definition of SupervisorSupervisor

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

First, We Must Build A Good First, We Must Build A Good WorkforceWorkforce

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

CommunicationsCommunications

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

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

IssuesIssues

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…

We Must Be Able To Spot We Must Be Able To Spot Union ActivityUnion Activity

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

What Do You Do When The What Do You Do When The Balloon Goes Up?Balloon Goes Up?

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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