Employee Free Choice Act Union-Free Strategies www fmglaw

Employee Free Choice Act— Union-Free Strategies www. fmglaw. com

Union Membership Statistics In 2008, 12. 4% of all workers were union (16. 1 million workers) • Private Sector Employees– 7. 6% • Public sector employees -- 36. 8% • Highest rate is with local government workers--membership rate of 42. 2% www. fmglaw. com

Who Belongs To Unions Today? Union membership rates: Men at 13. 4% Women at 11. 4% (although this margin growing smaller every year) Membership rates highest among workers 45 -54 and 55 -64 Lowest among workers 16 -24 www. fmglaw. com

Where Are Unions Weakest? Lowest Union membership: North Carolina 3. 5% Georgia 3. 7%, South Carolina 3. 9%, Virginia 4. 1%, Texas 4. 5% Louisiana 4. 6%. www. fmglaw. com

Where are Unions Strongest? Highest membership: New York 24. 9% Hawaii 24. 3% Alaska 23. 5%. www. fmglaw. com

Background On Employee Free Choice Act (EFCA) -- EFCA passed House 241 -185 in 2007 --Senate failed to get the 60 votes on June 26, 2007 --Current Congress 56 Dem, 41 Rep, and 2 Ind --Congress was 49 – 2 --New EFCA introduced by George Miller in House and Ted Kennedy in Senate on March 10, 2009 www. fmglaw. com

EFCA and Union Organizing • No election if Union gets 50% plus 1 of employees to sign a card • Bargaining Must Begin w/in 10 days after certification www. fmglaw. com

EFCA and Union Negotiations • Bargaining – Employer and union are allowed 90 days of collective bargaining • Mediation – If unable to reach a contract within 90 days of negotiations, FMCS mediation for 30 days • Binding arbitration – Arbitrator decides first contract with all workplace conditions www. fmglaw. com

EFCA and Fines/Penalties • Damages - Requires treble damages for employers for terminating or retaliating against an employee for union organizing efforts • Fines - Up to $20, 000 for the following new violations of NLRA: – threatening to close a facility or move business operations out of the country – modifying employee’s pay, assignments or work schedules because of activity during a union drive – prohibiting employees from wearing union campaign buttons or other paraphernalia www. fmglaw. com

2007 Union Cases (Nationwide) --Unfair labor practice cases in 2007: -22, 331 down from 23, 091 received in 2006 --Representation cases in 2007: - 3, 056, down from 3, 354 received in 2006 --Industries with highest number of cases: -Utilities, Construction, Manufacturing, Wholesale and Retail Trade, Transportation and Warehousing, Telecommunications and Publishing, Healthcare, and Administrative Services www. fmglaw. com

Geographic Distribution of Cases – Highest Number of Representation Cases: Illinois, Michigan, Ohio, New York, Pennsylvania, California and Washington (state) – Lowest Number of Representation Cases: Mississippi, Idaho, Wyoming, Maine, New Hampshire, Vermont, Nebraska, South Dakota and Louisiana www. fmglaw. com

Basics Of Union Prevention, Organizing and Campaign Preventive Strategies – – – Pre-Hires Current Employees Training Supervisors Three Steps to Union Organizing 1. Card Signing 2. Legal Case—The Representation Case 3. Election Campaign www. fmglaw. com

The Organizing Drive • Union “Starts an Organization Drive” • Now you wish you had done the preventive work • Union Attempts to Convince Your Employees to Sign an Authorization Card • Card Speech and attempt to keep them from signing • If 30 Percent of Employees Sign A “Card, ” the Union can Demand an Election • Unions usually want 65% www. fmglaw. com

The Legal Process • The National Labor Relations Board (NLRB) Determines----The “Appropriate Unit” for Collective Bargaining • The “R” Case---What is the Unit? Expand or Contract the Unit – Who Gets To Vote– Job Classifications – Usually Production and Maintenance • Office and Clerical, Shipping, Distribution Center, Quality Control, Who are Supervisors? , Nearby Facilities www. fmglaw. com

The Election Campaign • The Election Campaign--– Videos – Small Group Meetings – Polling – Website – Email Messages – Home Mailings – Postings – Events www. fmglaw. com

Why Invest/Prepare Now? • • • Regardless… Some Form of EFCA is coming Positive Culture Positive Communications Better Hires, Employees, Supervisors Lessen Risk of Litigation www. fmglaw. com

NLRB is not Getting Better -Appointed by President Obama through 2011 - Labor Counsel for the Bricklayers and Craftsmen -Legal Counsel to the International Teamsters B. A. from Barnard College in New York City and a J. D. from the George Washington University Law Center www. fmglaw. com

Preventive Strategies Identify Your Team 1. Management/Human Resources 2. Lawyers 3. Consultant– Advisors (identifying Risk/Prevention) 4. Training/Communications Resources www. fmglaw. com

Legal Issues/Preventive Strategies STEP 1 ---The Legal Issues • Review Your Policies: Policies for Union Avoidance are Different than EEO – – Union Free Statement Valid No- Solicitation/ No-Distribution Rules Handbook (Grievance Procedure and Basic Policies) Morale Survey/Testing/Interviews • Audit Your Facility to Determine the Unit – Expand the Unit/Contract the Unit – “Community of Interests” – Redefine Relationships/Reporting www. fmglaw. com

STEP 2 ---Assess Your Union Risk • Look at Geographic Area • Look at your Demographics • Comparable Employers • Identify the Likely Unions – Local, strike history, dues, decerts, fines, etc • Compare Wages, Benefits and Other Issues • Do you need a Consultant Now? • Morale Survey/Employee Analysis www. fmglaw. com

STEP 3– Training/Communications • • Pre-Hire Orientation/New Employees Current Employees Supervisors • • • Custom/off the Shelf Live On-line Written Materials On-line Video www. fmglaw. com

Step 4 ---Prepare for the Organizing Drive Now • Have Written Plan for Management and Supervisors – Election Team – Roles of Management and Supervisors • Have All Communications Identified/Prepared • Have Kick-off, Mid-Term and Closing Speeches Prepared • Have Written Plan/Calendar for Communicating with Employees www. fmglaw. com

Step 5 ---Prepare for the Election Campaign Now • Have Written Plan for Management and Supervisors – Election Team – Roles of Management and Supervisors • Have All Communications Identified/Prepared • Have Kick-off, Mid-Term and Closing Speeches Prepared • Have Written Plan/Calendar for Communicating with Employees www. fmglaw. com

Projections, Inc. www. fmglaw. com