EMPLOYEE FREE CHOICE ACT

1. EMPLOYEE FREE CHOICE ACTPaul J. ZechFelhaber, Larson, Fenlon & Vogt, P.A.Douglas P. SeatonSeaton, Beck & PetersBrendan D. CumminsMiller-O’Brien-Cummins EMPLOYEE FREE CHOICE ACT

2. THE EMPLOYEE REPRESENTATION PROCESS Paul J. Zech Felhaber, Larson, Fenlon & Vogt, P.A.

3. EMPLOYEE FREE CHOICE ACT THE EMPLOYEE REPRESENTATION PROCESS A. National Labor Relations Board (NLRB) secret ballot election. B. Voluntary recognition based upon the union’s majority support, normally determined by checking signed authorization cards. This is commonly referred to as a “card-check.”

4. EMPLOYEE FREE CHOICE ACT AUTHORIZATION CARDS “I hereby authorize the Union to represent me for purposes of collective bargaining.”

5. EMPLOYEE FREE CHOICE ACT AUTHORIZATION CARDS • Unions must collect 30% to obtain an NLRB secret ballot election. (And then the union needs votes from a majority (50% plus one) of actual voters to win the election.) • Card-check results are usually dependent upon whether the union obtains 50% plus one.

6. EMPLOYEE FREE CHOICE ACT EMPLOYER ENTITLED TO SECRET BALLOT Current Law: If the union has signed authorization cards from more than 50% of the employees in an appropriate bargaining unit (even 100%), the employer has the right to demand a secret ballot election.

7. EMPLOYEE FREE CHOICE ACT NO MORE SECRET BALLOT ELECTIONS? Employee Free Choice Act: If the union has signed authorization cards from more than 50% of the employees in an appropriate bargaining unit, then “the [NLRB] shall not direct an election but shall certify the [union] as the [employees’] representative.”

8. EMPLOYEE FREE CHOICE ACT BOTTOM LINE If the Employee Free Choice Act is passed into law, the union’s representational status would, in nearly all cases, be determined by counting signed authorization cards, rather than counting “yes” and “no” ballots from an NLRB secret ballot election.

9. EMPLOYEE FREE CHOICE ACT THE CARD-CHECK PROCESS 1. Union organizers and pro-union employees collect signatures by directly soliciting employees to sign a card. 2. The authorization card is a tool solely for use by the union. They do not allow an employee to express a preference by, for example, checking one box or another. 3. The employer has no comparable method for demonstrating that employees do not desire union representation.

10. Under EFCA, NLRB is merely required to: • Develop model authorization language to be used; • Develop procedures for establishing the validity of signed authorizations.

11. EMPLOYEE FREE CHOICE ACT CRITICISMS OF CARD-CHECKS • Election: "Captive audience" speeches within 24 hours of the election are prohibited. • Card Check: Employees are subject to unrebutted, pro-union speeches up until the time they sign an authorization card. • Election: The election is conducted by an agent of the NLRB in conjunction with an equal number of observers selected by the union and employer. • Card Check: Union authorization cards are solicited in the presence of union organizers.

12. Election: The election ballot box is physically inspected and sealed by the NLRB agent immediately prior to voting. • Card Check: The union maintains control over signed authorization cards. • Election: The names of prospective voters are compared against a previously established eligibility list before they may cast their ballots. • Card Check: Anyone may sign union authorization cards. Although forgery of authorization cards is prohibited, there is no safeguard that prevents forgeries before the fact.

13. Election: The NLRB agent retains positive control over the ballots at all times. • Card Check: The union retains control over authorization cards at all times. • Election: The ballots are secret: no name or other identifying information appears on the ballot to indicate how an employee voted. • Card Check: Both the employer and the union know which employees signed authorization cards.

14. Contract Formation – Current Process v. EFCA Process Douglas P. Seaton Seaton, Beck & Peters

15. Contract Formation – Current Process v. EFCA Process

16. History of Interest Arbitration • Used sparingly in the private sector • Used more frequently in the public sector • No right to strike • Public sector may give guidance to private sector

17. History of Interest Arbitration • Selection process for arbitrator • Presentation protocol for employer and union • Briefs • Testimony • Oral argument

18. How Does an Interest Arbitrator Decide? There is no contract to apply The law provides little guidance on the actual content of the CBA There are several factors that an arbitrator may consider…

19. Factors in an Interest Arbitrator’s Decision • Comparable contract terms for like groups of unionized employees • Comparable terms and conditions of employment for competitors (union & nonunion) • Traditional relationships between competitors/industry segments • Special circumstances • No real limits on decision

20. Select Problems with Interest Arbitration under EFC • Imports a process designed for “monopoly” public situations to the private sector • No competitors • No nonunion options • No economic “weapons” (i.e. strike/lockout/strike replacements) • The private sector has had these features since the NLRA was enacted in 1935

21. Select Problems with Interest Arbitration under EFC • Public sector terms and conditions of employment for “comparable” employees are subject to public access laws while private third party data is not

22. Select Problems with Interest Arbitration under EFC • Interest arbitration removes the economic pressure on employer and union to be rational/realistic in market terms in their bargaining positions

23. Select Problems with Interest Arbitration under EFC • Lack of secret ballot vote removes employee control over contract terms, as well as union representation • Does not lend itself to real world “trade-offs” of employer economic concessions for union concessions over language

24. Select Problems with Interest Arbitration under EFCA • Not calibrated to decide non-divisible or intrinsically difficult and “one sided” issues • Participation in an underfunded, demographically upside- down pension fund • Subcontracting and management rights clauses • Most favored nation • Union security • Integration/zipper clause • Need for concessionary (or enhanced) economic terms due to competitive or market conditions

25. Public Sector & “Last Best Offer” • “Last Best Offer” • Arbitrator may consider a party’s pre-impasse negotiating position • Assumption: demands are made in good faith • Must be “rationally connected” to employee or employer interests • Demands lacking integrity may not be considered

26. Example: Public Sector • Example: Minnesota Statute (§179A.16) • “Essential” Public Employees • Decision must be issued within 30 days from the date the proceedings have concluded • Commissioner may extend this deadline • Statistics show that arbitration takes much longer than this

27. Arbitration Statistics Federal Mediation and Conciliation Service (FMCS) FY 2007 Statistics Statistics from www.fmcs.gov

28. Interest Arbitration & 8(f) Agreementsin the Construction Industry When an 8(f) relationship between an employer and union has ended, the absence of a statutory duty to bargain does not relieve a party from contractual obligation to submit to interest arbitration Mandatory arbitration may affect 8(f) or 9(a) status of first agreements

29. Council on Industrial Relations (CIR) • Interest arbitration panel for electrical contracting industry • 12 members • 6 appointed by NECA • 6 appointed by IBEW • In practice, CIR imposes the “standard” agreement whatever the employer (or the employee’s) wish

30. A Case Study:IBEW & CIR • Local 666 IBEW v. Stokes Electrical Service, Inc. (4th Cir. 2000) • CBA provided for interest arbitration with the CIR • Agreement expired, employer refused to bargain, union filed arbitration petition with CIR • Court enforced the CIR decision holding that employer was required to implement the new agreements

31. Private Sector Interest Arbitration:Practical Results • Government appointed arbitrators deciding contract terms • Critical decisions on economic and language terms made by the arbitrator • Union demands less restrained since no need to confront strikes, lockouts or replacement employees

32. Appealing an Interest Arbitrator’s Decision • Federal Arbitration Act • No right to appeal on substantive grounds • An arbitrators misapplication of law or fact is not grounds for appeal • Minnesota Arbitration Statute • Court will vacate award under limited circumstances such as: • Award procured by corruption or fraud • “Evident partiality” by arbitrator

33. Employee Free Choice Act: Strengthening Remedies For Labor Law Violations Brendan D. Cummins Miller O’Brien Cummins, PLLP

34. Strengthened Penalties for Violators The Employee Free Choice Act strengthens penalties for companies that illegally fire or intimidate employees who try to form a union. The Employee Free Choice Act also strengthens penalties for companies that illegally fire or intimidate employees during first contract negotiations.

35. Three Enhanced Remedies The Employee Free Choice Act Strengthens Consequences For Violators In Three Ways: Federal Court Injunctions. -- The National Labor Relations Board (NLRB) would have the power to seek an immediate federal court injunction to stop serious violations of employee rights.

36. Injunctive Relief (Cont.) --This injunctive remedy would apply if there is reasonable cause to believe a company has fired employees, discriminated against them, threatened to fire or discriminate against them, or otherwise significantly interfered with employee rights while they are seeking representation by a labor organization or during first contract negotiations.

37. Injunctive Relief (Cont.) --Such injunction cases would take priority over other cases. --The injunction would be requested pending the final adjudication of the matter by the NLRB.

38. Injunctive Relief (Cont.) --Current law authorizes pursuit of immediate, priority injunctions pursuant to section 10(l) of the Labor Management Relations Act, 29 U.S.C. Sec. 160(l). This provision is limited to violations of picketing and secondary activity prohibitions. --The Employee Free Choice Act would extend this immediate, priority injunctive remedy to employees, not just companies.

39. Treble Back Pay Treble Back Pay. If the NLRB finds that a company has fired or discriminated against employees while they are seeking representation by a labor organization or during first contract negotiations, employees would be awarded back pay and two times that amount as liquidated damages.

40. Treble Back Pay (Cont.) --Currently the NLRB only has the power to award back pay to employees with interim earnings deducted. No liquidated damages, punitive damages, or any other economic damages are available to employees who have been illegally fired or have suffered discrimination due to their organizing activity. This distinguishes the National Labor Relations Act (NLRA) from other workplace laws like the Fair Labor Standards Act or Title VII.

41. Civil Penalties 3. Civil Penalties. Any company that willfully or repeatedly interferes with employee rights or discriminates against employees while they are seeking representation by a labor organization or during first contract negotiations would be subject to civil penalties not to exceed $20,000 per violation.

42. Civil Penalties (Cont.) --In determining the amount of the penalty, the NLRB would be required to consider the gravity of the unfair labor practice and the impact of the violation on the charging party, on other persons seeking to exercise rights under the Act, or on the public interest.

43. Civil Penalties (Cont.) --Currently, the NLRA only provides for make-whole relief and does not authorize penalties to deter violations.