Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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Breakout Program. Labor Law Changes: Impact on Engineering and Construction. Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Steve Hoech Sr. VP Employee Relations Zachry Industrial, Inc. - PowerPoint PPT Presentation

Transcript of Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Page 1: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Page 2: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Lewis SmoakShareholderOgletree, Deakins, Nash, Smoak & Stewart, P.C.

Lewis SmoakShareholderOgletree, Deakins, Nash, Smoak & Stewart, P.C.

Labor Law Changes: Impact on Engineering and ConstructionLabor Law Changes: Impact on Engineering and Construction

Breakout ProgramBreakout Program

Steve HoechSr. VP Employee RelationsZachry Industrial, Inc.

Steve HoechSr. VP Employee RelationsZachry Industrial, Inc.

Page 3: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

“After making millions of phone calls and knocking on millions of doors [during the 2008 elections], the nation’s labor unions have begun a new campaign: to get the new president and Congress to pass legislation that would make it easier for workers to unionize.”

November 8, 2008, New York Times

Page 4: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Who will be driving the new phase of labor policy?

Who will be driving the new phase of labor policy?

Page 5: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

U.S. Department of LaborU.S. Department of Labor

Hilda Solis – Secretary of Labor “We’re thrilled at the prospect of

having Representative Hilda Solis as our nation’s next labor secretary”

John J. Sweeney, president of the AFL-CIO

“Sided with the AFL-CIO in 97% of the votes that she has cast on the Hill”

U.S. Chamber of Commerce

Hilda Solis – Secretary of Labor “We’re thrilled at the prospect of

having Representative Hilda Solis as our nation’s next labor secretary”

John J. Sweeney, president of the AFL-CIO

“Sided with the AFL-CIO in 97% of the votes that she has cast on the Hill”

U.S. Chamber of Commerce

Page 6: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

U.S. Department of LaborU.S. Department of Labor

“Make no mistake about it: The Department of Labor is

back in the enforcement business.”

Secretary Solis’ Statement at the 2009 American Society of Safety Engineers’ Annual Conference

Page 7: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

U.S. Department of LaborU.S. Department of Labor

2010 DOL Budget Increases:– Overall, DOL’s budget - $400 million increase

– Promise to hire 670 new investigators • OSHA - $51 million increase – plan to hire 160 new in

enforcement staff

• Wage & Hour Division - $35 million increase – plan to hire 250 new field investigators.

• OFCCP - $27 million increase – plan to add 213 new employees

2010 DOL Budget Increases:– Overall, DOL’s budget - $400 million increase

– Promise to hire 670 new investigators • OSHA - $51 million increase – plan to hire 160 new in

enforcement staff

• Wage & Hour Division - $35 million increase – plan to hire 250 new field investigators.

• OFCCP - $27 million increase – plan to add 213 new employees

Page 8: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

National Labor Relations BoardNational Labor Relations Board

Wilma Liebman – Chair

“America’s working men and women will finally have the fair and committed leader they deserve….What a refreshing change.”

John Sweeney

AFL-CIO President

Teamsters Counsel (1974-1980) Bricklayers and Allied Craftsmen

Union Counsel

(1990-1993)

Wilma Liebman – Chair

“America’s working men and women will finally have the fair and committed leader they deserve….What a refreshing change.”

John Sweeney

AFL-CIO President

Teamsters Counsel (1974-1980) Bricklayers and Allied Craftsmen

Union Counsel

(1990-1993)

Page 9: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

9.5 9.49.0 8.9

8.58.2

7.9 7.87.4 7.5 7.6

9.7

10.210.410.9

11.211.5

11.912.1

12.412.9

13.4

16.8

14.0

15.5

14.6

6.07.08.09.0

10.011.012.013.014.015.016.017.0

'83 '84 '85 '86 '87 '88 '89 '90 '91 '92 '93 '94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08

Union Membership Total PRIVATE Workforce

Page 10: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Page 11: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

“EFCA”(Employee Free Choice Act)

“EFCA”(Employee Free Choice Act)

Page 12: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

What does the EFCA do?What does the EFCA do?

It would amend the National Labor Relations Act in 3 crucial respects:

1. Streamline the union certification process (Card Check)

2. Expedite Initial Collective Bargaining (Mandatory First Contract)

3. Stricter enforcement of violations of the National Labor Relations Act

It would amend the National Labor Relations Act in 3 crucial respects:

1. Streamline the union certification process (Card Check)

2. Expedite Initial Collective Bargaining (Mandatory First Contract)

3. Stricter enforcement of violations of the National Labor Relations Act

The Original EFCA

Page 13: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The “New” EFCA The “New” EFCA

1. Replaces “Card Check” with “Quickie Elections”:• Quickie elections

• Card check only for a “super majority” (e.g. 60% or 70%)

2. Grants union access to employees at work

3. Bans employer “Captive Audience Meetings”

4. Retains “Mandatory First Contract”

5. Retains stricter enforcement for unfair labor practices and bad faith bargaining delays

1. Replaces “Card Check” with “Quickie Elections”:• Quickie elections

• Card check only for a “super majority” (e.g. 60% or 70%)

2. Grants union access to employees at work

3. Bans employer “Captive Audience Meetings”

4. Retains “Mandatory First Contract”

5. Retains stricter enforcement for unfair labor practices and bad faith bargaining delays

Most Likely Compromise Legislation

What does the EFCA “alternative” do?What does the EFCA “alternative” do?

Page 14: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The “New” EFCAThe “New” EFCA

Elections must be held within 5-10 days of the filing of a petition

– Replaces the current 40-day time frame

– Gives companies hardly any time to develop strategy and deliver the company’s message

Elections must be held within 5-10 days of the filing of a petition

– Replaces the current 40-day time frame

– Gives companies hardly any time to develop strategy and deliver the company’s message

Quickie Elections

Page 15: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The “New” EFCAThe “New” EFCA

Unions have access to employees on company property

– Opens the door for confrontation and disruption

– Potential for more frequent legal challenges

Unions have access to employees on company property

– Opens the door for confrontation and disruption

– Potential for more frequent legal challenges

Union Access

Page 16: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The “New” EFCAThe “New” EFCA

Substantially limits companies’ ability to message to employees

– Limits the important impact of “face time” with employees

– Forces companies to use less effective, more expensive and more impersonal communication tools

Substantially limits companies’ ability to message to employees

– Limits the important impact of “face time” with employees

– Forces companies to use less effective, more expensive and more impersonal communication tools

Ban on Captive Audience Meetings

Page 17: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The “New” EFCAThe “New” EFCA

Bargaining must commence within 10 days of written request by the Union

– “Duty to bargain in good faith” supplemented by obligation to “make every reasonable effort to conclude and sign a collective bargaining agreement.”

Bargaining must commence within 10 days of written request by the Union

– “Duty to bargain in good faith” supplemented by obligation to “make every reasonable effort to conclude and sign a collective bargaining agreement.”

Bargaining Obligations

Page 18: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The “New” EFCAThe “New” EFCA

• MANDATORY, binding interest arbitration of first union contracts after 90 days bargaining and 30 days mediation

• Result: Government-imposed wages, benefits, and other terms & conditions of employment for 2 years

• MANDATORY, binding interest arbitration of first union contracts after 90 days bargaining and 30 days mediation

• Result: Government-imposed wages, benefits, and other terms & conditions of employment for 2 years

Mandatory Arbitration

Page 19: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The “New” EFCAThe “New” EFCA

• Provides union excuse for failure to deliver on promises

• Not likely to benefit employers– Terms could put company at competitive

disadvantage• Guarantees contract

– Good faith bargaining no longer the standard– Effectively extends certification bar

• Provides union excuse for failure to deliver on promises

• Not likely to benefit employers– Terms could put company at competitive

disadvantage• Guarantees contract

– Good faith bargaining no longer the standard– Effectively extends certification bar

Problems Presented By Mandatory Arbitration

Page 20: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

• Dues check-off• Union security• Successor language• Limit sub-contracting• Overtime after 8 hours• Limitations on work schedules, scheduling of

overtime• Arbitration clause – “final” (no appeal)• Pension Plan (Defined Benefit)• 401(k), increased match• Health Insurance – impose union plan?• Shift differential amounts• Grievance time paid for by Company• Superseniority for Stewards• Much more…

Arbitrator’s Power?

The “New” EFCA

Page 21: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The “New” EFCAThe “New” EFCA

Priority Investigation– Mandatory Injunctions

Back Pay plus liquidated damages of Double back pay (triple back pay)

Plus Civil Penalties of $20,000 for willful or repeat violations

Priority Investigation– Mandatory Injunctions

Back Pay plus liquidated damages of Double back pay (triple back pay)

Plus Civil Penalties of $20,000 for willful or repeat violations

Stricter Enforcement Against Employers

Page 22: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The “New” EFCAThe “New” EFCA

Will increase the number of charges filed– May make doing so a campaign tactic

Will distract employer with obligation to expedite response and to defend injunction action

– Risk reinstatement order from federal court

Will incite frivolous claims

Will make charges more difficult and costly to settle

Will increase the number of charges filed– May make doing so a campaign tactic

Will distract employer with obligation to expedite response and to defend injunction action

– Risk reinstatement order from federal court

Will incite frivolous claims

Will make charges more difficult and costly to settle

Stricter Enforcement Against Employers

Page 23: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

“RESPECT Act”(Re-Empowerment of Skilled and Professional

Employees and Construction Tradesworkers Act)

“RESPECT Act”(Re-Empowerment of Skilled and Professional

Employees and Construction Tradesworkers Act)

Page 24: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Significantly amends NLRA Section 2(11) definition of “supervisor”

– Requires that employee spend majority of time in a supervisory capacity

– Deletes the terms “assign” and “responsibly to direct” from definition of supervisor under the Act

Significantly amends NLRA Section 2(11) definition of “supervisor”

– Requires that employee spend majority of time in a supervisory capacity

– Deletes the terms “assign” and “responsibly to direct” from definition of supervisor under the Act

“RESPECT ACT”“RESPECT ACT”

Page 25: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

“RESPECT ACT”“RESPECT ACT”

Supervisor Defined

The term “supervisor” means an individual having the 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 foregoing the exercise of such authority is not merely of a routine or clerical nature, but requires the use of independent judgment.

Page 26: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

“RESPECT ACT”“RESPECT ACT”

Why is supervisor classification important?

Legal liability Scope of unit Early detection of problems and activity Communication Shaping employee perceptions

– Fair treatment

– Management credibility

Legal liability Scope of unit Early detection of problems and activity Communication Shaping employee perceptions

– Fair treatment

– Management credibility

Page 27: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

PROACTIVE STEPS TO START NOWPROACTIVE STEPS TO START NOW

Page 28: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Review and establish proper evidence to create the “optimal unit”

Review the supervisory structure and revise as necessary to properly exclude “supervisors” from the employee unit

Review and establish proper evidence to create the “optimal unit”

Review the supervisory structure and revise as necessary to properly exclude “supervisors” from the employee unit

Proactive StepsProactive Steps

Page 29: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Conduct periodic surveys to detect and resolve employee relations issues

Conduct vulnerability assessments to gauge the company’s exposure to unionization at “hot spots”

Conduct legal audits to ensure compliance with EEO, FLSA, OSHA and other legal standards

Conduct periodic surveys to detect and resolve employee relations issues

Conduct vulnerability assessments to gauge the company’s exposure to unionization at “hot spots”

Conduct legal audits to ensure compliance with EEO, FLSA, OSHA and other legal standards

Proactive StepsProactive Steps

Page 30: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Establish appropriate policies to limit exposure to outside union organizing efforts and internal use of company email and resources for organizing purposes

Assess campaign resources (management, PR, etc.)

Establish meaningful community relationships

Establish a culture of fairness from the top down

Establish appropriate policies to limit exposure to outside union organizing efforts and internal use of company email and resources for organizing purposes

Assess campaign resources (management, PR, etc.)

Establish meaningful community relationships

Establish a culture of fairness from the top down

Proactive StepsProactive Steps

Page 31: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Maximize employee involvement in workplace decisions, hiring and termination reviews

Establish a written positive employee relations program with assignments, calendared dates of execution and accountability

Communicate accomplishments

Maximize employee involvement in workplace decisions, hiring and termination reviews

Establish a written positive employee relations program with assignments, calendared dates of execution and accountability

Communicate accomplishments

Proactive StepsProactive Steps

Page 32: Lewis Smoak Shareholder Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Thank You! Thank You!