1. How an Obama Presidency
Could Change
Your Workplace
Maria Anastas
Aaron Roblan
505 Montgomery Street, Suite 800
San Francisco, California 94111
Phone: 415-276-6500 | Fax: 415-276-6599

2. Today’s Presentation
Climate for the Employee Free Choice Act (EFCA)
Employee Free Choice Act
Preparation: 7 Steps to Reduce Your Vulnerability
Other Possible Changes to Labor Law Under an
Obama Presidency

3. The Climate for EFCA
Unions in America Today
– 7.8% of private sector workers belong to a union
– Only 15.7 million workers are unionized in the private and
public sector combined
– EFCA could dramatically change these numbers
– Organized labor predicts that EFCA will increase union
membership by 10%

4. The Climate for EFCA
Retirement crisis
1.9 million jobs Health care crisis
lost in ‘08
Demographic Democrat-controlled
shift in U.S. EFCA Government
workforce
Housing
crisis Bailouts
Distrust of
corporations

5. The Climate for EFCA

6. The Climate for EFCA
Organizing Workers (with or without EFCA)
– Unions cards or petitions (electronic organizing)
– Traditional method of identifying a group of disgruntled
current or former employees
– Mass emailing or leafleting to generate interest
– They will rely on the fact that most employees do not know
that union cards are legally binding documents
– They will capitalize on the current movement for “change”

7. How Vulnerable Are You?
Think about your average employee—
regardless of their sophistication or
education level
– Would they sign a union card if they are told by a coworker
that it is simply to get information from the union? Or if they
are told it will guarantee job security and better healthcare?
If you do nothing, what are the chances that
your company may become unionized?

8. Employee Free Choice Act
Current Labor Law:
Two primary ways a union can become the
legal representative:
1) Secret Ballot Election
– Election petition requires signatures from minimum of
30% of workforce
– Election held within 42 days (if no hearing)
2) Voluntary Recognition
– Only by agreement of the employer
– 50% + 1 of employees must sign cards or petition

9. Employee Free Choice Act
Current Labor Law:
If a union becomes the legal representative:
– No legal requirement that you reach an agreement
– Length of time to reach an initial agreement is one year
(based on national average)
– Employees generally retain the right to ratify the contract
– Back pay is the only monetary penalty for unlawfully
terminating an employee in violation of the NLRA

10. Employee Free Choice Act
Under the Current Version of EFCA
– Unions may be certified without an election
By obtaining signatures from a simple majority of your
employees
The National Labor Relations Board verifies the signatures and
majority status
If they do, the union could be certified without employees ever
voting on the issue of union representation

11. Employee Free Choice Act
Under the Current Version of EFCA
– Expedited Bargaining
Bargaining must commence within 10 days of receiving a
demand from the union
If no agreement is reached within 90 days, either party can
demand federal mediation
If no agreement is reached within 30 days of mediation, either
party can demand arbitration
The panel of arbitrators can impose a two year agreement on
the parties (they will decide what your contract will contain)
Employees lose the right to ratify the contract

12. Employee Free Choice Act
Under the Current Version of EFCA
– Enhanced Penalties For Unfair Labor Practices
Backpay plus a penalty equal to double the backpay award (for
unlawful employee terminations)
Civil penalties of up to $20,000 for each violation of the
National Labor Relations Act, regardless of whether backpay is
involved

13. Employee Free Choice Act
A compromise on EFCA may include:
– Card check recognition only if super majority exists
– Penalties for union misrepresentation/coercion during card
signing
– Card check recognition for all representation elections,
including decertification elections
– Requiring union notice of organizing
– Shorter election timeframes (Canadian Model) as opposed
to eliminating the secret ballot election
– Longer bargaining periods before arbitration will be
mandated

14. 7 Steps to Reduce Your Vulnerability
STEP ONE:
Determine Your Commitment to EFCA Issues
– Convene a meeting of senior leaders to discuss a unified
approach
– Your organization must speak with one voice on labor
matters
– Prepare a labor relations philosophy

15. 7 Steps to Reduce Your Vulnerability
STEP TWO:
Develop a Plan Tailored to Your Organization
– Review your business objectives
– Evaluate your employee demographics
– Determine your communication strategy
– Identify leaders who will play active roles in the
implementation
– Create a timeline and accountability

16. 7 Steps to Reduce Your Vulnerability
STEP THREE:
Conduct a Vulnerability Audit
– Identify potential employee relations issues
– Assess managers and supervisors
– Evaluate wage and benefits issues
– Identify statutory supervisors
– Perform bargaining unit analysis
– Create action plan

17. 7 Steps to Reduce Your Vulnerability
STEP FOUR:
Identify Anticipated Organizational Changes
(Before Union Organizing Begins)
– Wages, benefits, policies and procedures
– Subcontracting
– Lay-offs

18. 7 Steps to Reduce Your Vulnerability
STEP FIVE:
Train Your Management
– Employee relations skills
– Managing across generations
– Legal do’s and don’ts
– Card signing
– Communication workshops

19. 7 Steps to Reduce Your Vulnerability
STEP SIX:
Communicate With Employees
– About your labor relations philosophy
– About unions and authorization cards
– About their work life and opportunities for advancement
– About the organization (changes, developments,
challenges, etc.)

20. 7 Steps to Reduce Your Vulnerability
STEP SEVEN:
Provide a Voice at Work
─ Evaluate what you currently do and don’t do
─ Seek input from all levels of the organization on how to
change
─ Consider new initiatives that give employees a meaningful
voice
─ We can help you

21. Other Changes to Labor Law Under an
Obama Presidency
RESPECT Act
Email rules
Weingarten rights extended
Right to work law ban
Protection of political speech
Patriot Employer Act

22. Presenter Contact Information
Maria Anastas Aaron Roblan
mariaanastas@dwt.com aaronroblan@dwt.com
(415) 276-6568 Direct (415) 276-6571 Direct
(415) 276-6599 Fax (415) 276-6599 Fax
Suite 800
505 Montgomery Street
San Francisco, California 94111-6533