webinar: preparing for efca and union organizing in 2009 jackson lewis llp and assisted living...

Webinar: Preparing for EFCA and Union Organizing in 2009

Jackson Lewis LLPand

Assisted Living Federation of America

Copyright 2009 Jackson Lewis LLP


The Presenters

Michael J. Lotito Roger P. Gilson, Jr.

More than 60 years combined experience representing employers on union issues.

2


JACKSON LEWIS LLP

3


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 4


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”• Steady decline In membership

• Fewer NLRB supervised elections

• Unions all united in support of EFCA

5


Unions Strongly Motivated-a Question of Survival

Percentage of Unionized U.S. Workforce – Private Sector

0

5

10

15

20

25

30

35

40

1935 1945 1955 1965 1975 1985 1995 2007

6


Union “Corporate Campaign” against Assisted Living 2007-2009

7


Unions on the Move-Fast Facts• In 2006 -07 unions begin to target the

virtually non-union 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 8


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.”

9


• 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.

Status of EFCA

10


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

11


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

12


National Labor Relations Act (NLRA) Today

Union Certification via NLRB Election

• National Labor Relations Board supervised

secret ballot election – private vote

13


National Labor Relations Act (NLRA) After EFCA

14


National Labor Relations Act (NLRA) After EFCA

HIGHLIGHTS OF EFCAUnion 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 15


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 16



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

17



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 18


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

19


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 20


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 cards21


Truth About Cards• Legal Document Binding the Employee

• Often contain membership clause

• Sometimes dues deduction

• “Power of Attorney” empowering the

Union

• “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 union22


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

certainty23


WHY EFCA MAKES ASSISTED LIVING AN EASIER TARGET

24


Home Visits and Phone CallsPaid Organizers Planted as New Employees or through Staffing AgencyOrganizers Gain Access as Visitors, Vendors or Appearing to be EmployeesGain Support from Outside Groups, Social Organizations, Neighborhood Associations, Church, SynagoguesHome Visits and Phone CallsPaid Organizers Planted as New Employees or through Staffing AgencyOrganizers Gain Access as Visitors, Vendors or Appearing to be EmployeesGain Support from Outside Groups, Social Organizations, Neighborhood Associations, Church, Synagogues

How Unions Organize

• Home Visits and Phone Calls-

Impersonating Company

Employees

• Paid Organizers Planted as New

Employees or through Staffing

Agency

• Organizers Gain Access as

Visitors, Vendors or Appearing

to be Employees

• Gain Support from Residents

and Outside Groups 25


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 26


EFCA Action Plan

Immediate EFCA

Action Plan

Required

27


Immediate EFCA Action Plan

• Talk about EFCA and Unions• Identify and educate NLRA supervisors:• 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

28


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

29


Communicate with Employees

•New Hire Orientation

•Periodic Human Resources

Update for Current

Employees on Employee

Philosophy

•Special EFCA Training Video

Periodic Supervisory

Training30


Legal Restrictions on Management

•TT hreats

• IInterrogation

• PPromises/bribes

• SS pying

Things You Cannot Say:

Management Office Rule31


Early Warning Signs—Know and Report

What are they?

How can I spot them?

What should I do if I see

them?32


Early warning signs

EarlyWarning

Signs

Nature/Frequency of employee complaints

changes

Groups form that include

individuals who do not normally associate with

each other

Managers receive large number of policy inquiries

Employees in work areas they do not

normally visit

Argumentative questions being asked in staff

meetings

Avoidance of supervision

3333


Is Lawful Rule Posted?Is Lawful Rule Posted?

GET OUTNo Solicitation , No Solicitation , Distribution or Distribution or Trespass by Non-Trespass by Non-EmployeesEmployees

34


Lawful Employee Rules• Solicitation by employees

• Permitted ONLY if all employees involved

are on non-work time

• 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

• NEVER permitted in immediate resident care

areas

• Bulletin Boards

• Lawful Off-Duty Access Limited to Inside

• Rules Must Be in Place Before Union Appears

• Check Your Handbook—Is Wording Lawful? 35


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?36


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 37


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 38

webinar: preparing for efca and union organizing in 2009 jackson lewis llp and assisted living...

Documents

jackson lewis llp slide

jackson lewis llp unions

jackson lewis llp efca

jackson lewis llp topics

support of efca

status of efca

assisted living card

labor candidates unions