LEGAL CHANGES IN THE WORKPLACE:
Employee Free Choice Act
(“EFCA”) and Other New Labor Laws
Gary Ingram
Jackson Walker, L.L.P.
301 Commerce Street, Suite 2400
Fort, Texas 76102
817-334-7247
Presented to:
Roofing Contractors Association of Texas
c. 2009
KEY PROVISIONS OF EFCA
• “Card Check” certification (no secret ballot
elections)
• After 90 days of bargaining, a collective
bargaining agreement (“CBA”) imposed by an
arbitration panel, binding for 2 years
• Increased employer penalties – mandatory triple
back pay for unfair labor practices, employee
reinstatement and $20,000 fines
SIGNIFICANCE OF CARD CHECK
CERTIFICATION UNDER EFCA
The National Labor Relations Act (“NLRA”):
• Neutral on whether employees should be represented
by a union
• Provides a democratic process for employees to vote
on union representation
• If 30% of employees sign an authorization card, an
election is scheduled
• 4-6 week campaign period
• Culminates in SECRET BALLOT ELECTIONS
SIGNIFICANCE OF CARD CHECK
CERTIFICATION UNDER EFCA
Labor trends:
• 1945 – 35% of private sector workforce was
organized
• 1980 – 24.7 %
• 1990 – 17.6 %
• Presently – 7.4 %
• Unions won 47.9% of elections in 1980, 50.4% in
1995, 60.4% in 2005, and 59.2% in 2007
SIGNIFICANCE OF CARD CHECK
CERTIFICATION UNDER EFCA
“Card Check” certification:
• Eliminates or reduces an employer’s ability to
“campaign”
• Eliminates NLRA neutrality
• Designed to result in union “wins”
• Designed to increase the number of workers
who belong to unions
SIGNIFICANCE OF MANDATORY
CBAS UNDER EFCA
• The NLRA is neutral on whether the parties
should reach an agreement
• The NLRA requires good-faith bargaining
• Fewer than 1/3 of “first time negotiations”
produce a CBA in 1 year; 1/3 never produce a
CBA
SIGNIFICANCE OF MANDATORY
CBAS UNDER EFCA
• Under EFCA, arbitration panels impose CBAs if
the parties do not reach an agreement in 90
days
• De facto elimination of the union’s duty to
bargain in good-faith?
• All “first time negotiations” will result in a CBA
SIGNIFICANCE OF MANDATORY
CBAS UNDER EFCA
Will the arbitration panel
• Choose one party’s proposal, or write its own
CBA?
• Consider the economic conditions of the
company, the workers’ conditions, the contracts
of competitors, etc.?
• Impose provisions interfering with the
company’s right to manage its workforce?
SIGNIFICANCE OF MANDATORY
CBAS UNDER EFCA
• Whatever the panel decides will be binding on
the parties for 2 years
SIGNIFICANCE OF INCREASED
PENALTY PROVISIONS
Under the NLRA, remedies include injunctions and
optional back pay awards; under EFCA
• Treble back pay awards against employers are
mandatory
• Fines of up to $20,000 will be imposed against
employers for certain practices
• Penalties against unions are not increased
ORGANIZED LABOR KNOWS THAT EFCA
WILL REMEDY ITS HISTORICAL DECLINE
For every 1% increase in unionization in the
United States, unions will receive approximately
$1 billion in dues
HOW DO UNIONS ORGANIZE NOW?
• “Corporate” Campaigns
• “Neutrality” Agreements
• Obtain employee signatures on union
membership/authorization cards
WHAT DO “UNION CARDS” LOOK LIKE?
Authorization to UFCW
Fill All Blanks
I, the undersigned employee of ___________________________________ authorize the
United Food & Commercial Workers Union to represent me in collective bargaining. I
am employed at:
Name of Employee (Please Print) ____________________________________________
Home Address ____________________________________________________________
City _________________________________ State _______ Zip Code _______________
Classification _____________________ Department ___________ Shift _____________
Telephone No. _____________________
DATE ____________________________ SIGNATURE ____________________________
WHAT DO “UNION CARDS” LOOK LIKE?
Page 2
This card will be used to secure recognition and
collective bargaining for the purpose of negotiating
wages, hours, and working conditions.
YOU HAVE THE RIGHT UNDER FEDERAL LAW
TO ORGANIZE AND JOIN A UNION
By joining the UFCW you have the support
of one of the World’s Largest Unions.
Cost Center ______________________ Div. _____________________________
__________________________________________________________________
(Back)
HOW LONG DOES UNION ORGANIZING LAST?
• Usually 1-12 months (signed union cards are
valid for 12 months)
• Union needs at least 30% of employees to sign
cards to get an election
• Most unions get signatures from more than 50%
of the employees before taking additional steps
HOW DO UNIONS OBTAIN SIGNATURES?
• Skilled persuasion tactics by trained organizers
••
••
••
••
••
Home visits
Telephone calls/e-mails/text
messages
Beer busts, picnics, rallies, raffles, etc.
Peer pressure from co-workers/union
supporters
Sometimes by trickery or misinformation
WHAT HAPPENS WHEN ENOUGH CARDS HAVE
BEEN SIGNED?
• Union will demand “recognition” by the employer to act
as the exclusive bargaining agent for employees
• Union will offer “card check” options
••
••
••
By employer
By neutral 3rd party (e.g., priest)
By delivery to foreman/manager
• If employer declines to voluntarily recognize the union
or check the cards, the union can file a petition for an
NLRB election
WHAT HAPPENS BEFORE THE ELECTION?
• Employer can provide information about the
union and the company in an effort to persuade
the employees to see the employer’s viewpoint
and to weigh all the facts before voting in the
election
• Most pre-election periods last about six (6)
weeks
WHAT HAPPENS AT THE ELECTION?
• The NLRB conducts a secret ballot election and
supervises the voting process and counting the
ballots
• Employees vote “Yes” if the want a union to
represent them and “No” if they do not
• Employees are free to vote however they want,
regardless of whether they signed a union card
or not
WHAT DETERMINES THE OUTCOME OF THE
ELECTION?
• The union must receive a majority of the votes
cast – a tie vote means the union loses
• If the union wins the election, the NLRB will
“certify” the election results and thereby
empower the union to legally act as the
employees’ bargaining agent
WHAT HAPPENS IF THE UNION WINS THE
ELECTION?
• The “certified” winning union can demand that the
employer bargain in good faith to reach an agreement
regarding wages, hours, working conditions, and other
terms of employment
• Although required to bargain in good faith, an
employer is not obligated to accept the union’s
demands
• The union generally is given 12 months to complete the
first-contract negotiations or it will then lose its
protected status as exclusive bargaining agent
GENERALLY, WHAT LEGAL LIMITS APPLY TO AN
EMPLOYER’S CONDUCT OR STATEMENTS ABOUT THE
UNION?
In general, an employer should follow the socalled “TIPS” rules which prohibit the following:
T I P S -
threaten employees for supporting or joining a union
interrogate employees about union activities or viewpoints
promise benefits or changes if employees will drop their
union support
spying or surveillance (or creating an inference of
surveillance) relating to group/union activities
WHAT SHOULD AN EMPLOYER DO NOW TO REDUCE
THE RISK OF UNION ORGANIZING?
• Educate managers/supervisors about the EFCA and
about what they can say and do
• Educate employees about the EFCA, about union
organizing tactics, and the legal consequences of
signing a union card
• Talk to employees and find out about their concerns
before a union organizer does – show them you will
LISTEN!!
• Evaluate whether supervisors are treating employees
fairly and with respect – usually the “hot button” union
organizing issue.
OTHER THINGS EMPLOYERS SHOULD DO
• Evaluate whether to change pay, benefits, working conditions –
sometimes even small changes can make a big difference – are
you “below the market?”
• Make good on any broken or unkept promises to employees.
• Review or adopt “no-solicitation/no-distribution” policies to
keep union propaganda out of the workplace.
• Try to avoid hiring union “salts” or from unionized sources.
• Watch for “stand-offish” or unusual employee behavior or other
signs of union organizing.
• If not sure what to do, ask for help! Don’t ignore!
OTHER
FEDERAL LAW
CHANGES
UNION ORGANIZING
• Re-Empowerment of Skilled and Professional
Employees and Construction Trade Workers Act
(“RESPECT Act”)
•• Changes the definition of “supervisor”
•• Will allow many current “supervisors” to be
unionized
UNION ORGANIZING
• Patriot Employers Act
•• Will create tax “incentives” to coerce
employers to remain “neutral” in response
to union organizing efforts
PAY DISCRIMINATION
• New Ledbetter Fair Pay Act of 2009
•• Increases time limits to file suit
•• Increases potential backpay liability
•• Increases length of time to keep pay records
PAY DISCRIMINATION
• Paycheck Fairness Act (pending)
•• Increases potential damages
•• Prohibits employer from retaliating against
co-workers who share paycheck information
•• Shifts burden of proof to employer to prove
pay was not discriminatory
MINIMUM WAGE
• Increases from $6.55 to $7.25/hr. July 24, 2009
OSHA
New rule allows Per-Employee citations for
violations of personal protective equipment
(safety goggles, hard hats, safety gloves, etc.)
regulations
PROPOSED
STATE LAW
CHANGES
EMPLOYMENT DISCRIMINATION
H.B. 538: Would prohibit discrimination based
upon sexual orientation or gender identity or
expression
•• Two recent Texas cases addressed
discrimination against transgender females
WORKER’S COMP
H.B. 520: Allows injured employee of a contractor or
subcontractor to sue the premises owner who hired the
contractor and purchased worker’s comp insurance for
the employees (removes worker’s comp insurance shield)
••Would overturn 2007 Texas Supreme Court decision in
Entergy Gulf States v. Summers
ARBITRATION
S.B. 222: Would void mandatory arbitration
agreements between an employer and employee
(except union arbitration agreements)
HANDGUNS
Legislation allowing handguns to be brought onto
employer parking lots is expected to be proposed.