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One Cleveland Center 20th Floor 1375 East Ninth Street Cleveland, OH 44114-1793 www.kjk.com V 216·696·8700 F 216·621·6536 How to Stay Union-Free in a Union-Friendly World. The Employee Free Choice Act and Beyond

Summary of Topics The Current State of the Law Regarding Unionization The Employee Free Choice Act How Do you Determine if You are at Risk? You Can Take Steps to Limit Your Risk. What Should You Do if You Think Your Employees are Considering Unionization?

The Current Environment Union membership is down, but starting to rise. 7.6% increase in private sector union membership since 2003. In 2007, 60.1% of elections were won by unions, while in 1997 only 51.5% of elections were won by unions. In 2008, the number of elections won by unions has increased to 66.8%. Unions have become more aggressive and are becoming more successful at unionization even without the EFCA.

The Current Environment (cont.) Unions spent hundreds of million dollars this previous election cycle and are pledging millions for post election campaigns. The Unions are emboldened by the 2008 elections. The Unions have been very clear that they want the EFCA to pass.

I. The Current State of the Law The Secret Ballot The First Collective Bargaining Agreement

The Secret Ballot Once Union presents 30% of cards signed… Employer can recognize union by choice. Can go to a private vote. Employer gets to talk to employees before vote. Majority result of private vote determines unionization. Most Unions wait to well after 50% of cards signed before present. Employer can agree to card check now.

The First Agreement Both sides have a Duty to Bargain in Good Faith No time limit imposed on bargaining. Bargain to Impasse

II. The Employee Free Choice Act Card Check Mandatory Binding Arbitration Stiffer Penalties for Companies

Card Check What Does this Mean? 50% + 1 cards signed = Union No more private vote No more chances to tell your workers your view of unionization. Increased chance of worker intimidation. Increased chance of union formation before the employer knows what is happening

A Comparison on Cards Old Way New Way 30% of signatures starts the process Unions usually wait until 50% or more cards signed. Employer can recognize union or opt for private vote. Up to six weeks to talk to workers before the private vote. Private vote determines whether company unionizes. 50% + 1 – Union turns over cards and you have a union. No Private Vote Required. No input from employer.

Card Check

Mandatory Binding Arbitration Negotiations must begin within 10 days after union is certified and requests to bargain. After 90 days, Union can request mandatory mediation. If at the 120 Day mark (30 days after request for mediation) there is no Collective Bargaining Agreement, the Union can choose to have the matter go before an Arbitrator. The Arbitrator will decide the first Collective Bargaining Agreement. The Agreement is binding for 2 years.

Stiffer Penalties Treble back pay for unlawful terminations during organizing efforts Willful violation could result in civil penalties of $20,000.00 per violation Expanding availability of injunctive relief and making priority cases for NLRB. New penalties do not apply to Unions.

What Are the Unions Saying?

Possible Compromises? Unions give up on card check, but push for mandatory arbitration. Some employee-friendly companies have proposed a compromise of expanded penalties, a fixed time for elections (a “quickie election”), and expanded access to employees during non-work hours, without card check or mandatory arbitration.

III. How Do you Determine If you are at Risk?

Recognize What Union Organizers Target Unionization efforts are almost twice as successful when they focus on: Lack of Respect Poor Communication Unequal Treatment as opposed to wage and benefit issues.

Recognize What Types of Companies Get Unionized Some Factors are Within Your Control…. Supervisors are poorly trained and play favorites. HR does not promptly and efficiently address issues. There is chronic dissatisfaction among employees. Employees feel disconnected from the Company.

Types of Companies, cont. Some Factors May be Outside Your Control…. There has been recent reductions in the workforce or outsourcing, or likely to be soon. There has been a restructuring of the company. Employees perform work traditionally done by union workers. Workplace has a factory atmosphere.

Audit Your Organization Assess Employee Satisfaction Meetings with Senior Management Assessment Questionnaires Management and HR needs to get out the floor and interact with employees. Ensure that HR has up-to-date policies.

IV. You Can Take Steps to Limit Your Risk.

Create an Environment Where Workers Don’t Feel the Need to Unionize Prompt and Effective HR Department. Decrease job insecurity issues where possible. Communicate. Encourage Worker Participation. Train Supervisors Employ an Effective Solicitation Policy

Communicate Inform employees about what the company is doing. Craft a Company Policy on Unionization and inform employees what it is. Listen to Employee Complaints: An open door policy Employee Complaint Hotline

Participate Engage Employees in Company Decision-making Processes However, be aware you cannot create an “employer-controlled union.” “Safe” ways to Engage Workers Programs that function as “suggestion boxes” to management. Work teams or programs that allow workers greater control over their own work. Some companies institute: Peer review boards However, if these groups settle workplace grievances, the employer must be careful not to intrude on the autonomy of the group or overrule their decisions. Participation Committees Employer should not select employees on the committees and employees cannot “represent” other employees.

Trained Supervisor Respects Workers Communicates to Workers Knows company’s stance on unionization

Solicitation Ban A general ban on solicitation on company property. The ban should not and cannot just target union efforts. Solicitation bans can be very problematic.

How to Implement an Effective and Legal Solicitation Ban A general ban on all solicitation during working time. A general ban on distribution during working time and in working areas The solicitation and distribution policy must be enforced in a non-discriminatory manner Prohibit posting, without specific approval, of notices or signs on company property, including bulletin boards, or the removal of approved notices without specific approval Cannot just target unionization efforts.

Solicitation (cont.) Lessons from Register-Guard on E-mail Solicitation Ban on “non-job-related solicitations” is OK. it already permits a union to use the e-mail system. However, no guarantee that Obama’s new appointees will uphold this ruling. Oral v. Written Solicitation Oral solicitation bans can only apply to working time Solicitation of signatures for cards is considered oral solicitation and would be covered Distribution of literature can be prohibited both during working time and in working areas

Educate Compose a Clear Company Policy on Unionization Inform them of their rights to organize and not to organize. Make sure workers know what it means if they sign a union card. Make sure workers know what questions to ask union organizers and what authority unions will have over workers.

V. What if You Think Your Employees are Considering Unionization?

Signs of Unionization Union literature Union authorization cards Pro-union buttons, shirts, etc. Off-site employee gatherings Changes in employee behavior Strangers in parking lots with handouts.

What To Do Alert Supervisor Investigate Be open to employees Whatever you do, don't target employees involved in the unionization process. NO: Threats Interrogations Promises, or Surveillance AND….

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