Jackson Lewis LLP
and
Assisted Living
Federation of America
Webinar: Preparing for EFCA and Union Organizing in 2009
Copyright 2009 Jackson Lewis LLP
The Presenters
Michael J. Lotito
More than 60 years combined
employers on union issues.
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Roger P. Gilson, Jr.
experience
representing
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JACKSON LEWIS LLP
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Topics We Cover
• Why Unions are on the Agenda—Bigger,
Stronger with More Resources
• Why EFCA makes it easier for unions to
organize Senior and Assisted Living
• Card-signing Campaigns- the New Battleground
• Preventing, Spotting and Responding
• Your Right to Free Speech—Your Property
Rights
• Do’s and Don’ts
• Preventing Organizing Issues
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The Perfect Storm
The Economy
•
Market down
•
Job insecurity up
Political Environment
•
President Obama
•
Larger democratic majority in senate
•
Labor’s contributions and expectations
“State of the Unions”
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Steady decline In membership
•
Fewer NLRB supervised elections
•
Unions all united in support of EFCA
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Unions Strongly Motivated-a Question of Survival
Percentage of Unionized U.S. Workforce – Private Sector
40
35
30
25
20
15
10
5
0
1935
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1945
1955
1965
1975
1985
1995
2007
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Union “Corporate Campaign” against Assisted
Living 2007-2009
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Unions on the Move-Fast Facts
• In 2006 -07 unions begin to target the virtually nonunion senior and assisted living industry
• In 2008, unions start to reverse their decline and
spend over $400 million supporting pro-labor
candidates
• Unions now win 67% of NLRB elections, but more
than 70% of new members come in through card
check deals
• Healthcare is the largest growth area for unions .
• SEIU, the fastest growing and largest, is at the
forefront of assisted living campaigns
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EFCA=Union Organizing Made Easy
“I’ve fought to pass the Employee Free Choice Act in the
Senate. And I will make it the law of the land when I’m
president of the United States of America.”
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Status of EFCA
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In 2007, EFCA passed the
House by vote of 241 – 185,
but died in the Senate when
supporter did not have 60
votes to cut off a filibuster.
•
2009: 8 likely supporters of
EFCA have replaced
Senators who opposed it
•
Everyone expects a fight
over the bill which could
delay passage
•
Obama has vowed to sign
EFCA as soon as it comes to
his desk
•
On March 10, 2009, EFCA
was re-introduced in both the
House and Senate.
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What EFCA Seeks to Replace
Current “Road to Unionization”
• Union solicitation of support (usually via cards)
• Petition for election filed with NLRB (30% or more
required)
• Employer communications
• Secret-ballot election
• Good faith negotiations
• Good faith negotiations
Organizing
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Petition
Election
Post
Election
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National Labor Relations Act (NLRA) Today
Card Signing is the First Step in Unionization Process
Most employers reject voluntary recognition through “card
check” (majority required), so unions must request an
election. Here is a sample authorization card
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National Labor Relations Act (NLRA) Today
Union Certification via NLRB Election
• National Labor Relations Board supervised secret ballot
election – private vote
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National Labor Relations Act (NLRA) After EFCA
Organizing
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“Card
Check” or
“Quickie”
Elections
Petition
Election
Bargaining
Mediation
Arbitration
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National Labor Relations Act (NLRA) After EFCA
HIGHLIGHTS OF EFCA
Union Certification
• Mandatory certification based solely on majority of employees
signing cards or petition
Contract Negotiations
• 90 days to negotiate entire first contract
• 30 days of mediation
• Mandatory interest arbitration for a two-year contract
Employer Penalties
• Triple back pay for discharge violations committed during the
organizing and negotiation process
• $20,000 civil damages for willful or repeated violations by an
Employer
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Practical Effects Of EFCA
EMPLOYEES WILL LOSE
• More hard sell, pressure tactics and
misrepresentations in card signing campaigns
• Employees against the union may have no
say--may not even know about card signing
• Card checks replace elections and election
campaigns so only hear one side of the story
• Employees have no chance to change their
minds and vote in private against the union
• No chance to get out for at least two years
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Practical Effects Of EFCA
EMPLOYERS WILL LOSE
• No notice of card signing which often occurs
under cloak of secrecy
• No election and no election campaign to
convince employees to vote NO
• High risk of charges and fines may inhibit
communications
• Only one bite at the apple-if you lose the “card
signing campaign”—you lose, period
• Contract imposed on you by arbitrator
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Practical Effects Of EFCA
UNIONS WILL WIN . . .
• Millions of new members from historically
union-free industries like Assisted Living
• More dues revenue
• Effectively eliminate employer opposition
• Guaranteed initial contracts
• Intimidation of supervision via remedial
processes
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TRUE CONFESSIONS OF A UNION ORGANIZER
• Unions are salivating over EFCA
• Just get employees to talk and then
you’ve got them
• When you go to their house and ask
them to sign..what are they going to
do..say NO? You already know where
they live!
• A little intimidation goes a long way
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WHY POTENTIAL EFCA COMPROMISES
ARE NOT SO PROMISING
Some Suggested Compromises to EFCA
•
Secret ballot but quickie election-14 days?
•
Union given equal access to voters on working time
•
Expedited enforcement and penalties for unfair labor
practices
•
Expedited timetable for bargaining and strict
penalties for bad faith bargaining
Caution: employer that loses card signing
campaign will find it hard to win election in
only 14 days when union is on your property--key is still to win card signing
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What Unions Say About Cards
• “Sign and we’ll get you more…….”
• “It won’t cost you anything”
• “It’s just to see who is interested”
• “Everybody else has already signed”
• Unions can legally use the “hard sell,”
peer pressure and make false claims
about cards
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Truth About Cards
• Legal Document Binding the Employee
•
Often contain membership clause
•
Sometimes dues deduction
• “Power of Attorney” empowering the Union
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“I wish to be represented …”
• A Blank Check with No Expiration Date…
•
Lasts at least a year
•
You don’t know what it could cost in the end
• If EFCA is enacted, a simple majority of signed
cards (50%+1) automatically certifies union
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WHY ASSISTED LIVING EMPLOYERS SHOULD
WORRY NOW
• You must act as if you are now in an “EFCA
world” and start preemption
• Union cards are good for at least one year
after they are signed
• Unions now getting signed cards and
holding them waiting for EFCA to pass
• Your first notice could be a fax from NLRB
• Once certification is filed—unionization
becomes virtual certainty
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WHY EFCA MAKES
ASSISTED LIVING AN
EASIER TARGET
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How Unions Organize
•
Home
andCalls
Phone CallsHome
VisitsVisits
and Phone
Paid Organizers Planted as New Employees or through
Impersonating Company Employees
Staffing Agency
Organizers Gain Access as Visitors, Vendors or Appearing
•
Paid Organizers Planted as New
to be Employees
Gain
Support fromor
Outside
Groups,
Social Organizations,
Employees
through
Staffing
Agency
Neighborhood Associations, Church, Synagogues
Home
Visits and Phone
•
Organizers
GainCalls
Access as Visitors,
Paid Organizers Planted as New Employees or through
Staffing
Agency
Vendors
or Appearing to be Employees
Organizers Gain Access as Visitors, Vendors or Appearing
to be
Employees
•
Gain
Support from Residents and
Gain Support from Outside Groups, Social Organizations,
Outside Groups
Neighborhood
Associations, Church, Synagogues
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Assisted Living Vulnerability under EFCA
• Community is vulnerable to card signing under
”cloak of secrecy”
• Community leaders have large span of control
and cannot to detect organizing signs and
symptoms
• Communities open to public often lack security
protocols to keep organizers out
• Many companies lack resources to mobilize
personnel to mitigate card signing
• Company strength is beating union in open and
concentrated election campaign, but not a
prolonged secret card signing campaign
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EFCA Action Plan
Immediate EFCA
Action Plan
Required
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Immediate EFCA Action Plan
• Talk about EFCA and Unions
• Identify and educate NLRA supervisors:
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•
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•
•
•
•
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Significance of cards under EFCA
Spotting early warning signs of activity
Rapid Reporting of union activity
Create an issue free environment
Educate employees on EFCA and cards
Ensure policies comply with NLRA
Post property- know/enforce your rights
Provide fair wages and treatment
Conduct vulnerability assessment
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Your Right to Speak Out
Section 8(c)
“The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed,
graphic or visual form, shall not constitute or be
evidence of an unfair labor practice…”
---- National Labor Relations Act
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Communicate with Employees
•New Hire Orientation
•Periodic Human Resources
Update for Current Employees
on Employee Philosophy
•Special EFCA Training Video
Periodic Supervisory Training
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Legal Restrictions on Management
Things You Cannot Say:
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•T
hreats
•I
nterrogation
•P
romises/bribes
•S
pying
Management Office Rule
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Early Warning Signs—Know and Report
What are they?
How can I spot them?
What should I do if I see them?
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Early warning signs
Employees in work
areas they do not
normally visit
Nature/Frequency of
employee complaints
changes
Early
Warning
Signs
Managers receive
large number of
policy inquiries
Argumentative questions
being asked in staff
meetings
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Groups form
that include
individuals who
do not normally
associate with
each other
Avoidance of
supervision
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Is Lawful Rule Posted?
No Solicitation , Distribution or
Trespass by Non-Employees
GET OUT
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Lawful Employee Rules
• Solicitation by employees
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Permitted ONLY if all employees involved are on nonwork time
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NEVER permitted in immediate resident care areas
• Distribution by employees
•
Permitted in non-work areas ONLY if all employees
involved are on non-work time
•
NEVER permitted in work areas
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NEVER permitted in immediate resident care areas
• Bulletin Boards
• Lawful Off-Duty Access Limited to Inside
• Rules Must Be in Place Before Union Appears
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• Check Your Handbook—Is Wording Lawful?
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Role of Manager in Preventing Union
• Who shows appreciation?
• Who communicates and makes
employees feel in on things?
• Who connects and listens?
• Who can make an employee feel
disrespected or ignored?
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Take Away Points
• Know, understand and implement
Pro-Employee Philosophy
• Treat employees fairly and with
respect
• Be comfortable discussing
disadvantages of card signing
• If you see something say something
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Questions?
Please feel free to e-mail your questions to the
presenters by referring to the instructions set
forth in the invitation or contact ALFA.org
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