1. STAYING UNION-FREE
IN A PRO-UNION WORLD
Presented By:
Phillip B. Russell, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart
100 N. Tampa Street, Suite 3600
Tampa, Florida 33602
Ph.: 813.289.1247 Fax: 813.289.6530
phillip.russell@ogletreedeakins.com

2. Great Expectations
“What a difference a pro-worker
Congress and pro-worker
President make.”
Anna Burger
SEIU Secretary/Treasurer

3. Executive Orders
Obama issued four pro-Labor Executive
Orders in the first month of his presidency.
 Requiring employers to post notice of right to
organize
 Employers cannot use federal money to stay union-
free
 Successor projects – must recognize existing union
 Encouraging project labor agreements on
Construction Projects

4. Union Membership
Percentage of TOTAL U.S. Workforce
26.0
25.1
23.0 23.2
21.9
20.0
18.8
17.0 17.5
16.8
16.1
15.8
15.5
14.0 14.5
14.1 13.9 13.9
13.5 13.3
12.9
12.5 12.4 12.3
12.1
11.0
'78 '80 '82 '84 '86 '88 '90 '92 '94 '96 '97 '98 '99 '01 '02 '03 '05 '07 '08 '09

5. Union Membership
Percentage of PRIVATE U.S. Workforce
17.0
16.8
16.0
15.0 15.5
14.0 14.0
13.0 13.4
12.9
12.0 12.4
11.9
11.0 11.5
11.2
10.9
10.0 10.2
9.0
9.7
9.5 9.4
9.0 8.9
8.0 8.5
8.2
7.9 7.8
7.0 7.4 7.5 7.6 7.4
6.0
'83 '84 '86 '87 '88 '89 '91 '92 '93 '94 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09

6. NLRB R-Case Elections
Year Elections Union Wins %
2000 2,876 1,541 54
2001 2,490 1,370 55
2002 2,639 1,515 57
2003 2,313 1,351 58
2004 2,242 1,314 59
2005 2,098 1,294 62
2006 1,657 1,030 62
2007 1,533 950 62
2008 1,610 1,089 68
2009 1,299 893 69
2010* 215 141 66

7. What Happened to EFCA?
 Health care fight took priority
 Unions took “wait and see” approach
 EFCA lost support
 Congress’ makeup changed

8. How Will Unions Organize
New Members Now?
 They will rely on a “new and improved” NLRB
 They will place greater emphasis on pursuing
state and federal legislation to advance their
interests
 They will continue to pursue traditional
strategies that have worked (salting,
corporate campaigns, well-trained organizers,
etc.)

9. THE NEW NLRB
(Democrat Majority Through Recess Appointments)

10. The New & Improved NLRB
How can we predict what
they will do?
Their articles and statements
speak volumes.

11. According to Wilma Liebman…
“Even in its original form, EFCA
does not represent comprehensive
labor-law reform. What it
represents, rather, is the prospect
of an end to the ossification of our
law.”

12. According to Wilma Liebman…
“It’s time to reinvigorate labor
law.”
“The NLRB has become the Rip Van
Winkle of administrative
agencies.”

13. According to Craig Becker…
“Similarly, employers should have no right to raise
questions concerning voter eligibility or campaign
conduct. Because employers have no right to vote, they
cast no ballots the significance of which can be diluted
by the inclusion of ineligible employees. … Because
employers lack the formal status either of candidates
vying to represent employees or voters, they should
not be entitled to charge that unions disobeyed the
rules governing voter eligibility or campaign conduct.
On the questions of unit determination, voter
eligibility, and campaign conduct, only the employee
constituency and their potential union representatives
should be heard.”

14. How The New NLRB May Help
Unions Do Better
 Extending Statutory Coverage (to individuals
currently viewed as “supervisors”)
 Giving quickie elections
 Protecting union contracts when businesses
change hands
 Expanding the use of harsh remedies for
reported violations of the NLRA

15. How The New NLRB May Help
Unions Do Better
 Granting union access to employees and
employee information
 Restricting pre-election unit determinations
 Restricting employer communications, policies
and rules (impacting employee union
activities)
 Removing obstacles to organizing contingent
workers

16. What State Legislation?
 Unions have effectively used their political
influence to pass laws banning mandatory
meetings
– Oregon, New Jersey and the Virgin Islands
did it
– Michigan and New Hampshire are in the
process (“Worker Freedom Act”)
– Colorado’s Governor vetoed their bill

17. Energized, Focused and
Optimistic

18. Proactive Steps: The Time For
Employers To Act Is Now
 Plan for a quickie union campaign
 Communicate the company’s position on
unionization
 Train front-line supervisors
 Review and establish proper evidence to
create the “optimal unit”
 Review the supervisory structure and revise
as necessary to properly exclude
“supervisors” from the employee unit

19. Proactive Steps: The Time For
Employers To Act Is Now
 Conduct vulnerability assessments to gauge
the company’s exposure to unionization at
“hot spots”
 Conduct legal audits to ensure compliance
with EEO, FLSA, OSHA and other legal
standards
 Train employees on policies, open door,
complaint procedures, etc.
 Consider implementing an ADR/Peer
Review program

20. Proactive Steps: The Time For
Employers To Act Is Now
 Review policies for legal and practical
sufficiency
 Assess campaign resources (management,
PR, etc.)
 Establish meaningful community
relationships
 Establish a culture of fairness from the top
down

21. Proactive Steps: The Time For
Employers To Act Is Now
 Maximize employee involvement in
workplace decisions, hiring and termination
reviews (e.g., peer review)
 Make sure employees feel they have a
“voice at work”
 Establish a written positive employee
relations program with assignments,
calendared dates of execution and
accountability
 Communicate accomplishments

22. STAYING UNION-FREE
IN A PRO-UNION WORLD
Presented By:
Phillip B. Russell, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart
100 N. Tampa Street, Suite 3600
Tampa, Florida 33602
813.289.1247
Phillip.russell@ogletreedeakins.com