Changing Face of Labor Laws: Union Organizing In The Age of a Pro-Labor NLRB

1. Changing Face of Labor Laws: Union Organizing In The Age of a Pro-Labor NLRB Atlanta, GA • Asheville, NC • Austin, TX • Birmingham, AL • Boston, MA • Chicago, IL • Columbia, SC • Dallas, TX • Fairfax, VA • Greenville, SC • Jacksonville, FL • Kansas City, MO • Lakeland, FL • Los Angeles County, CA • Macon, GA • Madison, WI • Nashville, TN • Princeton, NJ • Port St. Lucie, FL • St. Louis, MO • Tampa, FL • Ventura County, CA • Winston Salem, NC

2. Today’s Program Changing Face of Labor Laws August 2012 Presented by Timothy A. Davis tadavis@constangy.com 816.329.5910 Twitter @TAloysiusD

3. What would you and your team do? • You receive a message from a location on a Saturday morning saying: • Group of guests sitting in restaurant handing out flyers to employees and customers saying “Don’t eat here employees not paid or treated fairly”? • Employee asks manager to give her a list of employee names and phone numbers? • Guest stands in parking lot handing out cards to all employees? • Guests walking back and forth across entrances to business impeding ingress/ egress?

4. What would you do?

5. Kansas City Example of “Labor” at Work • Multi-pronged “labor, employment and 99%” attack planned against restaurant chain • Distribution of union cards to organize • Mass job application of union supporters • Covert job application of union supporters • Sit-in and picketing to gain public awareness and boycott • Lawsuit on wage issues • Your industry uniquely situated for a “99% and union attack”

8. Program Goals • Labor Relations Legal Update • Our Responsibilities & Assignments • Answer the “What would you do” questions

9. 2010 Flashback • Legal Playing Field • EFCA card check very possible • Two-Member NLRB with No Power • Industry Union Activity • Less than 1.1% of “Food Service” Industry Unionized – mostly in cafeterias and education institutions (Now 1.2%) • Pizza Delivery Driver Campaigns (Pizza Delivery Drivers Union) • Jimmy John’s (Wobblies) • Starbucks (Wobblies)

10. The Present - Legal • EFCA Dead • Labor Board Quorum Busy and Doing Everything Possible to Aid Unions

11. The NLRB Today DEMOCRATS – Chairman Mark Pearce; Richard Griffin and Sharon Block REPUBLICAN - Terrance Flynn

12. What are They Doing? NLRB claims to have the authority through rules or decisions to: • require posting/advertising for unions (litigation pending) • decide union access rules (physical and electronic) • determine (i.e. shorten) election procedures and time periods • determine “unit” issues and allow for smaller or multiple units • determine methods of voting (mail/electronic) • regulate social media -PCA

13. What this means - Elections Today “INFORMED” Voters 1ST Campaign 2ND Campaign PETITION 42 DAYS ELECTION ____/_______________________/_____ / Present Facts to EEsR HEARINGREASONED VOTE

14. Elections Tomorrow (If NLRB wins litigation or re-issues rules)… “EMOTIONAL” Voters 1ST Campaign 2ND Campaign PETITION14-21 DAYSELECTION _______/_____________/_____ / R HEARING EMOTION/UNINFORMED VOTE

15. NLRB Election Process Step One: Unhappy employees reach out to a union because of issues at work or in response to union e-blasts, home mailings, newsletters or publicity Step Two: Union organizers evaluate targets Step Three: Organizers develop organizing plan based on issues Step Four: Organizers solicit signatures on cards Step Five: If sufficient cards signed – file NLRB petition for appropriate unit Step Six: Campaign Period (14-42 days) Step Seven: Secret Ballot Election - On-site, mail or electronic

16. The Myth and the Truth The Myth: Most organizing begins with union organizers reaching out to employees. In reality unhappy, unengaged and disgruntled employees initiate most organizing efforts. The Truth: It all about building trust and perceptions.An employer that has appropriate policies, ensures that employees are treated fairly, benchmarks wage/benefits and frequently and effectively engages in bilateral communications with employees is much less likely to have discontent and misperception that can lead to unionization. In addition, this culture is much more likely to lead to early reports of union activity that can be responded to quickly and effectively.

17. So…What Do We Do?

18. What Impact Will New Board and Rules Have? • More union target probing – historic low union rates means must organize • Unions more likely to take chances on less than sure bets if can act quickly • More likely to go after smaller or partial units that were previously not worth the investment • More likely to explore industries outside core strength • Partnering with more militant non-labor groups to publicize message.

19. Prevention Efforts in Light of New Playing Field – Winning the 1st Campaign? • Premium on daily prevention through effective management, fair policies, communication and trust • Premium on effective management training and early warning tripwires (in this industry, first call likely to be a site security call) • Premium on “shovel ready” union response protocols and materials • Premium on site security to control hand-billing and picketing in a way that does not perpetuate a story or play into union’s hands.

20. Don’t Panic – PrepareSeven Steps to Security! • Review your policies, practices and procedures (solicitation/distribution/access) • Benchmark wages and benefits • Conduct employee/management surveys • Train management (labor relations & security) • Know yourself (How would you organize your own employees?) • Implement a risk/response protocol • Prepare first round of union avoidance materials (card-signing) in advance

21. 1. Policy Review • Union Free Statements • Employment At Will (the nice version) • Open Door • Application/Orientation Procedures • Dispute Resolution • Email/Voicemail/Social Media Policies • Bulletin Board • Solicitation/Distribution/Non-Employee Access & Employee Access

22. 2. Benchmarking • Wages & Benefits • Key Practices • What is your “business card” response to union wage promises? • We survey our industry and our area to make sure our pay and benefits are fair and competitive. We make sure we pay fairly and provide good jobs for our employees. Union organizers who promise more than that do not know our industry or our challenges. They just want money out of your paycheck. Don’t sign anything until you get all the facts.

23. 3. Surveys/Employee Input • Employee opinion surveys • Supervisor “perception” surveys • Regular roundtable/open issue meetings • Suggestion Boxes/Hotlines • Open Door

24. 4. Mirror, Mirror on the Wall • Study yourself and prepare to defend your weaknesses • Part of training program (white-boarding/ role-playing) • Employee Surveys • Supervisor Perceptions Survey • Industry Materials

25. 5. Supervisor Training • Don’t over-train (keep it simple) • Causes of Discontent • Signs of Discontent • Reporting Discontent • Knowing your weaknesses (how would you organize yourself role-play) • Legally Responding to Discontent & Organizing (6th grade level not Human Resources level) • Don’t sign a card until you get the facts and know the costs? • Don’t sign a card until you hear the other side of the story? • Don’t sign a card unless you know the risks of things like union strikes, union dues and fees • Not just union bad ---but also company good

26. Active Organizing Significant issues and some union talk/activity Significant issues but no union activity No issues or activity 6. Risk/Response Protocol

27. 6. Risk Protocol/Color Codes • Code Red: Take Immediate Action and Implement Card Plan to buy time while assessing issues (win first campaign) • Code Orange: Take aggressive action to raise awareness of management team while addressing issues and publicizing recognition and plan to employees. • Code Yellow: Take action to address issues appropriate for level of challenge. • Code Green: Take precautionary measures to harden the target by building good management awareness, assessing and improving employee relations and ensuring effective communication.

28. 7. Initial Response Materials • Card Signing Letter • Card Signing Speech • Card Signing Handouts • Card Q&As • Supervisor Response & Distribution Guidelines

29. This Little Card Can Be Big Trouble Cards are legally binding and enforceable against you! These cards are not just so the union can get you more information or so you can have an election like organizers may lie and tell you! Signing a card is the first step in the union taking hundreds of $$$ out of your paycheck every year! This card gives the union control over the terms and conditions of your employment! You don’t have to let organizers in your home or sign anything they try to give you!

30. Do I want to pay the union hundreds of $$$ every year out of my paycheck? Will union organizers guarantee their promises in a signed and legally binding agreement before I have to sign a union card? Do I want to sign a union card and give the union the legal right to control my job? Do I want to become an union member and take the risk that this union may some day tell me if I don’t go on strike the union will punish me or take the risk I could be permanently replaced while on an economic strike? YES orNO YES orNO YES orNO YES orNO When you ask the right questions... Saying NO to the Union is the Right Answer! Please Don’t Sign A Card!

31. Union Membership/Authorization Cards Are legally binding and enforceable! Are the first step in the Union getting hundreds of $$$ out of your paycheck! Can obligate members to follow union rules like going on strike if the union tells them to! Don’t Sign a Union Card and Take the Big Union Risks!!!

32. Union Organizers Make empty promises that are not guarantees to sign up new dues-paying members! Will say whatever they think you want to get your signature on the dotted line Use promises as bait to hook you and get your money. Don’t Get Hooked by Empty Promises from Organizers Who Are Paid to Sign You Up!

33. The Truth About Union Cards As everyone has heard by now, a union organizer is trying to convince our employees to sign a union card and become dues-paying union members. In exchange for you signing up and agreeing to pay approximately $____ of your hard-earned money in union dues every year, the union organizer is making a lot of empty promises. Before you sign your name on the dotted line, get the facts. Know what signing a card means and how the union can use your signature. Answers to some common questions about union cards are provided below so you can be completely informed. • QUESTION: What is a union authorization card? • ANSWER: A union authorization card is a card signed by an employee stating that he wants the union to represent him/her and be his/her collective bargaining agent. It is the first step into becoming a union member and paying union dues. While organizers and union supporters may say otherwise, signing a card is not simply so that the union can get you more information.

34. One thing we can agree with the unions about!

35. Re-Cap • 2012 Elections will have a big impact on the law –control of NLRB • Monitor pending lawsuits and NLRB action • Unions getting hungry (pun intended) and more likely to explore food industry • Don’t Panic, Prepare - good management techniques, advance preparation and quick responses are key to success. • Coordinate with Human Resources to make sure “employee” program is being coordinated with “security” and “publicity” programs.

36. Wrapping Up… Questions?