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Similaire à Hot Legal Issues In This Economy For Material Handling & Industrial Equipment Businesses
Similaire à Hot Legal Issues In This Economy For Material Handling & Industrial Equipment Businesses (20)
Hot Legal Issues In This Economy For Material Handling & Industrial Equipment Businesses
- 1. Hot Legal Issues in this Economy for Material Handling & Industrial Equipment Businesses Jeremy Silberman David Cassidy Mo Bauer Gary Marks Charles Bruder The material provided herein is for informational purposes only and is not intended as legal advice or counsel.
- 2. Protecting Your Dealership Under State Franchise and Dealer Protection Laws Jeremy Silberman
- 5. The Manufacturers Alliance/MAPI May 2009 Economic Report:
- 6. United States Forklift Sales Class 4 & 5 (Internal Combustion) Source: Industrial Truck Association; 2006 – 2008 Shipments; 2009 Estimated Orders.
- 7. Northern New Jersey Forklift Orders Class 1 – 5 2009 estimate based on annualizing Jan - May 2009 Orders.
- 27. Employee Free Choice Act: Where It Stands and What It Means to Employers David Cassidy
- 32. Certifying A Union Today Petition Campaign Election Democracy!!! Objections Hearing
- 38. Secret Ballot S A M P L E
- 39. The EFCA WAY!
- 40. Involuntary Card Check Union =
- 42. Privacy?
- 43. The Union is in… Now What??
- 44. Negotiating With The Union
- 45. Out with the old… In with new… Current labor negotiations under the NLRA Proposed changes under the EFCA
- 48. ULP Remedies – Ouch! What they are, and the price to pay under current law and EFCA
- 51. Planning for the EFCA How to prepare for the worst case scenario
- 59. Will It Pass?
- 63. Collecting From Financially Distressed Customers Mo Bauer
- 75. When to Consider Filing for Bankruptcy Protection for Your Business Gary Marks
- 80. Succession Planning — Minimizing Costs and Risks When Transitioning Your Business to a Family Member or Selling to a Third Party Charles Bruder
- 91. Question & Answer Session Thank you for coming!
Notes de l'éditeur
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- What is an authorization card? Legal document signed by an employee that designates a union as his or her bargaining agent. The union authorization card is legally binding on the employee. Union authorization cards legally authorize a union to represent an employee for the purposes of collective bargaining with an employer. VALID FOR ONE YEAR – SOME UNIONS HAVE CARDS FROM LAST YEAR WAITING FOR THE ACT TO PASS!
- TO understand what this new law is, it is important to review the statement of the law by Congress. Note efficient system to enable employees to join or assist a labor organization Provide for mandatory injunctions during organizing – BY the Government, NLRB! The original NLRA, Wagner Act, was much more neutral in its statement of purposes: Its purpose is to define and protect the rights of employees and employers , to encourage collective bargaining , and to eliminate certain practices on the part of labor and management that are harmful to the general welfare.
- The proposed EFCA accomplishes statement of purpose through 3 major changes: 1. Both processes already exist under current law, but employers currently hold the power to veto the decision of workers to form a union through majority sign-up. 2. Under current law, employers have a duty to bargain in good faith, but are under no obligation to reach agreement. Obvious to provide teeth to the NLRA This slide is taken from the House of Representatives’ Committee on Education and Labor Website
- TO BEGIN TO UNDERSTAND THE EFCA, WE WILL GIVE A LITTLE BACKGROUND ABOUT THE CURRENT NLRA
- Here is the typical process to certify a union today. We will go through is more detail, but the key points are there is a campaign period for each side to express their views and then a secret ballot election conducted by the NLRB . Much of the delay associated with an election is at the hearing and objections stage. This is where labor lawyers earn their money as many times an employer will seek to delay the elections or the ultimate results. Bargaining units Workers in like position – DEFIENS THE NUMBER OF WORKERS WHO CAN VOTE, no management or supervisors ALLOWED – WHO IS A SUPERVISOR IS A BIG ISSUE AT THE HEARING STAGE? Currently, hearings determine units. Generally results in either a determination of appropriateness by the Board, or a mutual agreement by the parties that the bargaining unit is acceptable.
- LETS TAKE A CLOSER LOOK 30% OF CARD = THE RIGHT TO FILE A PETITION – TYPICALLY UNIONS WAIT TO FILE UNTIL THEY HAVE 6—70% BECAUSE THE CAPMPAIGN PERIOD WILL ERODE SOME SUPPORT – CURRENT SYSTEM, AN AUTHORIZATION CARD IS NOT A VOTE, ONLY A STATEMENT THAT ONE DOES AUTHORIZE THE UNION TO BE THE REPRESENTATIVE – CAN CHANGE YOUR MIND IN THE LECTION BOOTH THERE TYPICALLY IS A 40 DAY CAMPAIGN PERIOD!
- Here explain the Card Check Process briefly Potentially eliminates any kind of campaign period. There is a provision that allows for 30% of the employees to demand a secret ballot, so the secret ballot provision is not entirely gone. NOTE – We close the Election Portion of the presentation with this slide also.
- No TIPS Threats Interrogation Promises Surveillance Other notes Questioning includes questioning their leanings or whether they go to meetings. Quid pro quo includes changing management structures or enhancing communication…ANYTHING.
- Unions have a more leeway in making statements although they too are prohibited from tips Challenges to union activity do exists but I think it is fair to say much harder to prove and more leeway granted to unions. Employers argue that the Campaign Period and the Secret Ballot are the great equalizers in explaining positions and protecting employee privacy.
- Formal process overseen by the nlrb A list of dos and don’ts – objections will be filed by the losing party which drag the process out several months I have conducted elections in plants, storage areas, chicken farms, anywhere and everywhere – my personal favorite was an election conducted in e poultry processing plant – not pretty
- Here is a sample form – very simple yes or no The employer is listed at the top and the union where sample is listed Can be more complicated if several unions involved – secrecy is protected – there is a protected area at and around the ballot area – no interference allowed
- The Employee Free Choice Act will revolutionize Labor Law in America History of Labor Law Depression brought on the 1935 Wagner Act The pendulum swings back – the 1947 Taft Hartley Act – some significant modifications NOTHING FOR 50+ YEARS 74 years of case law and practice 2009 – Recession/Depression? = The Employee Free Choice Act I WOULD NOTE AT THE THIS SLIDE THE HOUSE RECENTLY UPPED THE NLRB BUDGET BY 6 MILLION PER YEAR – WHATS DOES THIS MEAN? NOTE THE EEOC BUDGET WAS UPPED 1.5 MILLION – NLRB RECEIVED 4X MORE OF AN INCREASE!
- A Card Check can occur and the Union can present the cards to the NLRB without any prior warning to the company Stress that a Card Check can occur and the Union can present the cards to the NLRB without any notice to the employer Potentially eliminates any kind of campaign period. There is a provision that allows for 30% of the employees to demand a secret ballot, so the secret ballot provision is not entirely gone. NOTE – We close the Election Portion of the presentation with this slide also.
- What is an authorization card? Legal document signed by an employee that designates a union as his or her bargaining agent. The union authorization card is legally binding on the employee. Union authorization cards legally authorize a union to represent an employee for the purposes of collective bargaining with an employer. VALID FOR ONE YEAR – SOME UNIONS HAVE CARDS FROM LAST YEAR WAITING FOR THE ACT TO PASS! EFCA REQUIRES RULES AND REGULATIONS TO BE ISSUED – WHO KNOWS WHAT THIS MEANS
- This is a commercial from myprivateballot.com, a group dedicated to defeating the EFCA in congress. Click on the box to play the commercial.
- Negotiations – what are they process to reach an agreement on terms and conditions of employment NLRA currently only requires good faith bargaining – no mechanism to force an agreement Parties can strike, lockout, declare an impasse and implement terms Litigation over good faith bargaining is a major area of dispute – what is good faith?
- Here we see a handshake – the current NLRA requires agreement The EFCA imposes a referee requirement - lets see what I mean by that!
- Here is a comparison for you! Note the differences under current law and the new law!
- Currently, Interest Arbitration cannot be forced on any party, union or employer. Now it will be a requirement. Remember, this is only for 1 st Contracts
- Unfair Labor Practice – Term of Art that applies to actions taken by employers that violate the NLRA Inspected by the NLRB Concerted activity simply means two or more employees acting together, regardless of whether a union already exists.
- Gissel (Pronounced with a hard G) bargaining orders are basically the NLRB deciding certain terms of the agreement for the parties as a punishment Currently penalties are remedial and “make-whole” New penalties are more punitive. Injunctions are VERY infrequent under the current system. Civil damages under the EFCA are for severe and repeat offenders. Note that historically, an employer’s allegation that employees or unions were acting unfairly were granted priority. The EFCA adds several employee/union allegations that will also be given priority including Discharge or threatened discharge Any ULP that significantly interferes with…right to unionize
- Bill hasn’t passed Discuss cloture and political issues Potential for compromise
- Similar to the trial practice of “drawing the sting”, or introducing bad information before your adversary can. Attack these negative issues, or at least let the employees know that you are aware of them, you will lessen the effect of the Union promoter’s sales pitch.
- Card check can allow a union to gain a foothold before the employer knows its an issue…then its too late!
- Get an honest and effective audit of your company’s human resources to determine where and how vulnerable you really are Salts - A “Salt” is an employee of the Union who attempts to get hired by the employer - Primary goal is to unionize “co-workers” - Employer CAN NOT fire a salt based solely on his union affiliation or organizing activities Technically, he is moonlighting and it is second job In reality, his primary goal is unionize his co-workers Termination cannot be for salting activities if they are conducted outside normal working time. - Supreme Court has expressly permitted salts
- Place a premium on training managers as leaders and communicators “ Intimidators” are generally poor communicators and leaders - A note on “intimidators” Often be considered the best managers on a staff because they generally “make their numbers”. Production may ultimately come at a very expensive cost if workers feel they need a union to protect them from their boss!
- Train managers and supervisors to recognize the “Early Warning Signs” Of union activity to create awareness & open communication Unions do have certain limitations A recent case confirmed that the unions and employees did not have a right to use company email for union purposes. One concession for the EFCA may be something similar to a “do not call” list, which would protect workers from harassing unionizers Inform Your Employees? - Benefit - Employee is insulted by the EFCA and opposes it - Company campaigns first and controls message - Risk - Employee is educated and seeks out the union Refer to hand-out of Union Testimony This goes both ways…we probably shouldn’t advise that they do or do not educate their workers on the EFCA. It could really go either way depending on the attitude of the work force.
- Create a campaign calendar with specific responsibilities assigned within the organization Develop a program to educate employees TIPS – threats, interrogation, promises, surveillance
- Some incarnation of the EFCA will likely received the votes in the Senate to push the act into law Unlikely that the current incarnation will be passed in tact
- President Obama received a lot of campaign support from Unions in the elections, based in part on his support of the bill
- History Previous incarnations of the Bill were voted down in the House of Representatives in 2004 and 2006 Introduced to the House of Representatives in February of 2007. Passed the house on March 1, 2007 by a vote of 241-185, largely along party lines Introduced to Senate on March 30, 2007 by Ted Kennedy, co-sponsored by 46 other senators including Barack Obama The bill was never voted on because there were not enough votes to avoid a filibuster A filibuster is an action available to senators, whereby they can hold up a bill in discussion (theoretically forever) to prevent it from passing. Sixty votes are needed to break-up a filibuster and move the legislation to a vote, where only 51 votes are needed.
- On election day in 2008 it was widely assumed that congress would vote on the EFCA strictly along party lines, although recently, even though there will likely be sixty senators caucusing with the Democrats when the time to vote comes (58 democrats and 2 independents), the democrats don’t know if all 60 will be voting for the EFCA. The confirmation of democrat Al Franken, of Saturday Night Live fame, as a Minnesota senator is being held up by an election contest. Franken will likely be confirmed. The two independent voters, Joe Lieberman (CT) and Bernard Sanders (VT), will likely vote for the EFCA However, some Democratic senators are receiving intense pressure and have shown signs of wavering on the EFCA vote Diane Feinstein (CA) is being pressured by the chamber of commerce and major CA businesses Blanche Lincoln (AR) is being pressured by Wal-Mart, which is headquartered in Arkansas And finally newly converted Democrat Senator Arlen Spector, a longtime supporter of Labor Law reformation, has already stated he will NOT vote for the EFCA in its current form, specifically reiterating that point on the day he switched parties, but has been proactively working to reform the current form of the bill. NOTE - Obama recently has said he is willing to make compromises to get the bill passed and his office is working with Spector and other senators from both parties to craft a compromising version of the ill. Obama has said that will not accept any amendment whose premise is that people should not unionize Basically, this includes anything that looks to add a hurdle to unionization, regardless of the “free choice” argument.
- Some incarnation of the EFCA will likely received the votes in the Senate to push the act into law Unlikely that the current incarnation will be passed in tact
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