Bringing Politics into the Workplace during Election Season: A Wise Move for Employers?

This post was contributed by Eric N. Athey, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Law Group.

Mitt Romney recently drew criticism for commenting to the National Federation for Independent Business (NFIB) that employers should weigh in on the upcoming election when speaking to employees. Specifically, Romney told NFIB members: "I hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections." Romney went on to say that there is "[n]othing illegal about you talking to your employees about what you believe is best for the business, because I think that will figure into their election decision, their voting decision and of course doing that with your family and your kids as well." These comments likely had many HR professionals across the country asking, "Can employers really do that?"

Federal election laws prohibit many types of voter intimidation but do not prohibit employers from expressing their political opinions in the workplace. When it comes to employers, however, the line between political expression and employee intimidation can be blurred. An obscure Pennsylvania state law addresses this issue and makes it a crime for "any person or corporation" to intimidate voters or to otherwise interfere with the "free exercise of the elective franchise." Violations of the law can trigger a penalty of up to $5000 and imprisonment for up to two years. Given the severity of these penalties, employers who are inclined to stump for a candidate in the workplace need to be careful.

The state law prohibits several types of conduct:

  1. The use or threat to use any force or restraint, or any other manner of intimidation or coercion upon any person in order to compel the person to vote a certain way or to refrain from voting;
  2. The use of any "forcible or fraudulent device or contrivance" to interfere with any individual's vote;
  3. The payment of wages in "pay envelopes" which contain or on which is written any political motto, statement or "argument containing threats….intended….to influence the political opinions of employees"; and
  4. Displaying in the workplace, within 90 days of any election or primary, any "handbill or placard" threatening that if a particular candidate is elected all or some of the work in the establishment will cease, wages will be reduced or similar threats.

Most employers have the sense to steer far clear of these prohibitions. However, any employer that brings politics to work must remember that their commentary will be subject to varying interpretations by employees. An employer's political commentary may be perceived as threatening to some employees, though no threat was intended. To use Romney's example, merely saying that a particular candidate is better for business would pose no problem at all under Pennsylvania law. However, saying that the company will shut its doors if another candidate is elected, may well cross the line.  

The main point is that an employer is free to openly support a candidate. Displaying signs with a candidate's name should not be perceived by anyone as threatening or intimidating. However, if an employer feels compelled to address employees directly, it is important to consider the audience and the restrictions imposed by state law. Like the political candidates themselves, employers who want to give their own campaign speech should confer with their consultants (i.e., HR and counsel) before stepping up to the podium.

Union Leader Predicts EFCA passage by August 2009

Andy Stern, President of the Service Employees International Union (SEIU), was recently interviewed by USA Today where he predicted the passage of the Employee Free Choice Act (EFCA) by August. 

Unions have substantial political clout and this prediction should be respected. According to Department of Labor filings, the SEIU has almost 1.7 million members and spent $32.9 million on political activities and lobbying in 2007. The SEIU's 2008 report will likely show an increase in its political spending on the Presidential Election. Mr. Stern has also expressed his sentiments on organized labor's role in the election and its expectations in a Wall Street Journal Interview as follows:

"We just won an election. It's no secret." By "we," Andy Stern means "American workers." He also means Big Labor. Speaking on behalf of the fastest growing trade group in America, the Service Employees International Union -- and as one of labor's most powerful figures today -- Mr. Stern sets this simple bar for the Obama presidency: "I expect nothing less than what he said he was going to do, and we should hold him accountable."

Labor has its sights on EFCA and this pending legislation has enormous potential consequences for employers. Currently, employers cannot make significant workplace policy or other changes once a union files a petition for election. Under EFCA, there may not be an election, only a card check.  Employers may not be aware of organizing efforts or have insufficient time to react. Employers should be putting into place union avoidance programs before EFCA becomes law. Developing an action plan should include the following items:

  • Assessing union eligibility of working supervisors under RESPECT Act.
  • Educating supervisors on authorization cards and the Nuts and Bolts of EFCA.
  • Adopting union-free policies on solicitation, bulletin boards, and use of e-mail.
  • Initiating engagement surveys.

More information is contained in our prior posts as follows:

Nuts and Bolts of the Employee Free Choice Act (EFCA) and RESPECT

Bosses do not Deserve RESPECT

Why not Educate Employees on the Significance of Union Authorization Cards?

Employee Engagement Surveys may be Critical to Combating Union Organizing Efforts

NOW is the Time for Employers to Gear up for the Employee Free Choice Act (Unions Are)

Employee Engagement Surveys may be Critical to Combating Union Organizing Efforts

The Employee Free Choice Act stands to shortcut the process for certifying a union depriving an employer of its chance to conduct a campaign to educate its workforce on the downside of unionization, squelch union promises, and redress employee perceptions. The employer’s campaign occurs between the filing of a union petition and the schedule NLRB-supervised secret ballot election - a period of 30 to 45 days.

Elimination of the secret ballot and allowing union certification upon a card showing of greater that 50% will force employers to conduct employee education and assess vulnerabilities in advance of union organizing actions. Some businesses mistakenly believe that employee interest in unions revolves around promises of higher pay and better benefits. Quite to the contrary, most studies on employee motivation for union membership conclude that non-economic concerns are the chief motivators for union membership. Most workers think that unions can get them "a greater say in the workplace." The attitude translates to issues like job security, effectiveness of supervisors, and involvement in workplace decisions. Unionization is not all about the money; it is about workers being "engaged." Disengagement can mean unionization.

Employee Surveys are one of the better ways to conduct systematic and regular assessment of employee attitudes about a whole host of important workplace matters.   Business may be skeptical about the benefits of Employee Surveys and what they can find out about a workplace. Today's Employee Survey are customized to the employer. They can assess an employee's attitudes on various subjects and correlate data by department. business location, etc. Often the survey can identify an issue or supervisory relationship that needs management attention. Survey results can also be benchmarked with comparable businesses.

Designing an effective survey requires collaboration with an expert to tailor the survey to the business and assistance in interpreting the survey data. Success Performance Solutions designs, conducts and evaluates employee surveys for companies in a wide variety of industries. I asked Dr. Ira S. Wolfe, for his thoughts on the EFCA and employee surveys. His comments are as follows:

 

At this point it is important to differentiate between employee satisfaction surveys and engagement surveys. The terms “employee engagement” and “employee satisfaction” means different things to different people. In its simplest form, satisfaction means employers are not doing anything to anger employees. That’s good information to know but not nearly enough to retain employees, no less head off any attempt to unionize employees.

Employee engagement, on the other hand, is a complex equation that reflects each individual’s unique, personal relationship with work. BlessingWhite, in its 2008 State of Employee Engagement study, describes the engaged employee as not just committed, not just passionate or proud, but having a line-of-sight on their own future AND on the organization’s mission and goals. “They are ‘enthused’ and ‘in gear’ using their talents and discretionary effort to make a difference in their employer’s quest for sustainable business success (The State of Employee Engagement 2008, p.1).

Unfortunately for North American employees, fewer than 1 in 3 employees (29%) are fully engaged. Nineteen percent are actually disengaged. Many managers think “yea, yea, yea. What’s the big deal?”

The big deal – and the payoff – is that there is a clear correlation between engagement and retention, with 85% of engaged employees indicating that they plan to stay with their employees. Disengaged employees on the other hand are opportunists, staying for what they get (favorable job conditions, growth opportunities, and job security).

 

The BlessingWhite results are consistent with the Gallup Management Journal’s Employee Engagement Index where 29% of employees are actively engaged in their jobs, 54% are not-engaged, and 17% are actively disengaged.

The statistics on workforce engagement are surprising. No, I take that back…they are appalling and a huge risk factor for any organization that has any ambition of remaining union-free. With almost two third of workers either moderately engaged or not engaged, it is hard to ignore this wake up call.

Properly constructed and executed engagement surveys unravel the complexity by targeting three focus areas:

  • Are the employees emotionally attached to your organization to endure tough times?
  • Are you (the employer) doing anything to incent the employee to become more productive on your behalf?
  • Are you doing anything to make the employees angry?

In a tight economy, the threat of disengagement exposes business to more than just a threat of turnover and potential unionization. Engaged employees say they stay because they like their work, while disengaged employees stay for reasons like job security, favorable work conditions, and growth opportunities. The threats of layoffs – perceived or real, increasing demands for more productivity, and a freeze on promotions – attacks the very attachment that keeps disengaged employees on the payroll.   Laying off employees and cutting benefits demoralizes a workforce and makes it a natural environment to cultivate union activity. The Employee Free Choice Act the process a whole lot easier, making an employer extremely vulnerability to unionization.

The BlessingWhite study also revealed that the sectors most vulnerable to a lack of employee engagement are information technology, media, retail, hospitality, and healthcare.  The current downturn provides firms in these industries some time to improve the engagement of their employees.  But, if they fail to take advantage of this opportunity, they will become victims of significant turnover, particularly among younger workers.

Employee engagement surveys are sophisticated measures of employee attitudes on what I refer to as the four A's: Accountability, Alignment, Attitude, and Approachability. These four factors reveal if employees feel they are being treated fairly and with respect, are aligned with your business goals and values, and feel a connection through their direct supervisors and co-workers. More specifically this is uncovered by focusing on up to 16 different organizational competencies such as compensation and benefits, culture and climate, my manager/supervisor, recognition, safety and working environment, team dynamics, senior management, workplace ethics and more.

In addition to evaluating the general attitude, organizations can detect “hot spots” by querying the data by location, department, teams and even factors like commute time and demographics. An employee engagement survey allows management to respond proactively and not react in haste to a unionization attempt. By aiming for full engagement, the majority of employees will feel an alignment with the goals of the organization and their personal values, goals and aspirations.

Nuts and Bolts of the Employee Free Choice Act (EFCA) and RESPECT

Basic Provisions: EFCA amends the NLRA to change the procedures for union certification and first contract negotiation. The primary components of the act are as follows:

  • Allows NLRB certification of a relevant bargaining unit upon authorization card showing from 50% plus one of employees bypassing the NLRB-supervised secret ballot election.
  • Mandates initial collective bargaining contract be negotiated within 120 days of union certification. If no contract is reached, the first contract is produced by an arbitrator through an interest arbitration process. The first contract covers employees for 2 years.
  • Imposes sanctions on employers who engage in unfair labor practices during a union representation drive including $20,000 per violation and double back pay awards for discharged employees.

The RESPECT Act changes the definition of supervisor under the NRLA to allow working supervisors to become union members. Working supervisors are those who don't spend a majority of there time in strictly management activities. Working Supervisors have there current status as supervisors as a result of assigning or directing the work of others.

 

Employment Implications: EFCA is a monumental change to the NLRA which eliminates the employer's campaign to rebut a union organizing drive following the filing of a petition with the NLRB. Authorization cards are an unreliable mechanism for determining employee union interest. Interestingly, there are no changes to the decertification process in EFCA. To get rid of a union, employees must file a petition with the NRLB and go through the traditional secret ballot election process.

 

Much has been made of the abrogation of the secret ballot election, but equally dramatic are the limitations placed on collective bargaining and contract determination by an arbitrator if no agreement is reached in 120 days of negotiations.  Reliance on arbitrators to craft a contract where none has existed before is ridiculous. The arbitrator will likely be unfamiliar with the business and the result will likely be a cookie cutter agreement that ignores important operational issues.

 

If enacted, EFCA will result in unprecedented organizing activity with employers losing their ability to demand a secret ballot election and engage in hard bargaining over a first contract. With the RESPECT Act, working supervisors will gain the right to organize and employers will lose one of their primary avenues to influence employees and obtain information.

 

Obama Administration Views: The Obama Administration's transition website (Change.gov) states that the Administration will "fight for the passage of the Employee Free Choice Act" and supports the passage of the RESPECT Act.

Will Your Employees be some of the 5 million Workers Unions expect to add to their Membership under the Employee Free Choice Act?

Change is coming to Washington and to America's workplaces. President Elect Obama launched a new website Change.gov where he explains his labor agenda which included passage of the Employee Free Choice Act. The Obama Administration's transition views are summarized at the Connecticut Employment Law Blog.
Unions are on board too. After their push for Obama, Unions seek new rules for organizing workforces through the EFCA, as observed by Steve Greenhouse of the NYTimes:

With union membership sliding to 7.5 percent of the private-sector work force, one-third the rate in 1983, unions see enactment of the bill as the single most important step toward reversing their loss of membership and power. Some labor leaders predict that if the bill is passed, unions, which have 16 million members nationwide, would add at least five million workers to their rolls over the next few years.

The impact of the EFCA will be monumental so we will be dedicating a lot of blog time to this topic. Look for future posts in the following areas:

  • Nuts and Bolts of EFCA: examines the specifics of the proposed legislation.
  • Employer's Guide to Authorization Cards: looks in detail at authorization cards, their legal significance and how they are solicited by unions.
  • Identifying and Training Supervisors to Maintain your Union-Free Status: outlines the role of supervisors in disseminating the employer's message including the impact of the RESPECT Act.
  • Employee Engagement Surveys as a Tool to Combat Union Organizing: keeping your finger on the pulse of employee.
  • Becoming Politically Active in Response to EFCA: making your business's voice heard in Washington and particularly by the one Republican Senator, Arlen Specter of Pennsylvania, who has co-sponsored the EFCA.
  • How to Avoid Unfair Labor Practices when you are an Organizing Target: negotiating the legal landscape of traditional labor law.

 

Employer's Strategic Planning for an Obama Administration

President-Elect Obama told his hometown crowd that "Change has come to America." Through his election speeches, website and co-sponsorship of Senate Bills there is a road map of what changes will likely be coming to the American workplace.

Employers would be well served by examining the impact of likely legislation on their business and planning accordingly. The most significant changes will likely come from the Employee Free Choice Act  and RESPECT ACT which will reshape union organizing. The building trades, healthcare, and manufacturing will be the first to feel the effects, but so will business that were not traditionally union targets like financial services.  The balance of Senator Obama's legislative agenda involves expanding existing areas of employment protection through the Paycheck Fairness Act, Ledbetter Fair Pay Act, Employment Non-Discrimination Act.

Prior posts have summarized the content of these bills and their impact on the workplace. In the coming weeks, we will provide more extensive guidance on planning to meet the changes posed by these and other legislative initiatives.

Related Posts:
Employer's Guide to the Election
Obama Victory may give rise to Unprecedented Unionization of the American Workplace

Bosses do not Deserve RESPECT
 

Why Union Organizers come Knocking on an Employee's Door and Why the Employee Free Choice Act will increase those "House Calls"

One big frustration for union organizers is access to employees for the purpose of soliciting union authorization cards and peddling the union message. Sophisticated employers have no solicitation policies, which force union organizers out of the workplace and into the parking lots and homes of employees.

The primary barrier to union home visits is determining where employees live. Until a union files a petition for election, an employer isn’t obligated to hand over employee names and address. To file a petition for election under the current law, a union must obtain signed authorization cards from 30% of the employees in an appropriate unit. Home visits are a very effective way of putting pressure on employees to sign cards, because most people view the visit as an intrusion and just want the “visitor” to leave. Therefore, they sign the card without much thought to its significance.

Unions use a variety of methods to get employee addresses such as company directories and just asking employees. Unions will go to great lengths to obtain employee addresses even employing a controversial method called “tagging.” Tagging involves Union members writing down the license plate number of employee vehicles in an employer’s parking lot and running the license plates to obtain the name and address of the person who owns the vehicle. Addresses are then used for home visits. The practice of tagging was recently struck down, in Pichler, et al. v. UNITE, decided by the United States Court of Appeals for the Third Circuit. 

The Employee Free Choice Act will fundamentally alter the role of authorization cards and increase the importance of house calls. Under the EFCA, a union can be recognized as the bargaining representative for a company’s employees if it obtains signed authorization cards from more than 50% of the employees in an appropriate unit. Pressuring employees at home will likely become even more frequently employed tactic.

One Less Tactic In Organized Labor's Arsenal: Third Circuit says No To "Tagging"

In Pichler, et al. v. UNITE, the United States Court of Appeals for the Third Circuit has weighed in on the controversial union organizing tactic known as "tagging." In its effort to organize employees of Cintas Corporation, the largest domestic employer in the industrial laundry industry, UNITE (Union of Needletrades, Industrial & Textile Employees) engaged in "house calls," i.e., knocking on doors at the homes of Cintas' employees in an effort to convince them to support the Union. In order to locate the home addresses of these employees, the Union would record the license plate numbers of cars found in Cintas' parking lots to access information contained in state motor vehicle records relating to those license plates. This process was known as "tagging."

Unfortunately for the Union, a group of Cintas employees, objecting to what they perceived to be a violation of their privacy rights, sued the Union under the Driver's Privacy Protection Act. That federal statute provides that a "person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains, who may bring a civil action …" While the statute enumerates 14 exceptions to the general prohibition, the Court of Appeals affirmed the District Court's conclusion that union organizing was not listed among the 14 "permissible uses." 

The Court's majority rejected the Union's assertion that there were two exceptions which made its tagging permissible: the "litigation" exception and the "acting on behalf of the government" exception. The Court's majority reasoned that it did not matter whether the Union may have used the confidential information for either of these permissible purposes because it clearly admitted using the information for an impermissible purpose, union organizing. It was on this point that Judge Sloviter dissented. She asserted that summary judgment should not have been granted, so that a jury could determine whether the Union's "primary purpose" in obtaining and using the confidential information was to monitor potential legal violations by Cintas, a permissible use under the statute.

The Court also reversed the lower court's finding on punitive damages, holding that the plaintiff employees were entitled to a jury trial on their punitive damages claim. However, the most substantial impact of the Third Circuit's decision may be in its clear message to union organizers: tag at your own risk. And employers may be heartened to know that if, as many expect, the Employee Free Choice Act is soon enacted, unions will be far less likely to use tagging in their quest to obtain those valuable authorization cards.

 

NOW is the Time for Employers to Gear up for the Employee Free Choice Act (Unions Are)

Sometimes a wait and see approach is the right call when it comes to proposed legislation, but not for nonunion employers facing the possible passage of the Employee Free Choice Act (EFCA). EFCA will radically change the way unions organize employers by eliminating the “campaign” phase and secret ballot election that have been the hallmark of industrial relations since the inception of the NLRA in 1935.

Under EFCA, a union can organize an employer based simply on a majority card showing. The following actions will place an employer in much better position should EFCA become law:

  • Educate your managers and supervisors now, not only on the card-signing process itself, but more broadly as to why unionization may be anachronistic in the 21st Century workplace.
  • Audit your current HR practices and make improvements before the union is on the scene (as it may be an unfair labor practice to do so after the union begins contacting your employees).
  • Make sure your employees have a recognized channel for bringing their concerns to management, a way they can "let off steam." (If not, your claim later that they don't need a union to represent them may fall on deaf ears.)
  • Make sure your supervisors are consistently administering disciplinary policies in a non-discriminatory equitable fashion.
  • Train your managers and supervisors on what they can and cannot say during an organizing campaign, and maybe more importantly, what they should be saying if the union shows up.
  • Review your policies on solicitation, distribution of literature, bulletin board postings, and employee use of e-mail, while necessary changes can still be made. Again, if you wait until the union is on the scene to tweak, you will be committing an unfair labor practice.
  • Review your wage and benefit structures. If you're not competitive in your industry or geographical area, the union will seek to exploit this in suggesting to your employees they need union representation.

Most experts believe EFCA is likely to be enacted in 2009.  Presidential candidate John McCain opposes EFCA and submitted a statement to the Congressional Record on June 26, 2007 in which he stated as follows:

I am strongly opposed to H.R. 800, the so-called “Employee Free Choice Act of 2007.” Not only is the bill’s title deceptive, the enactment of such an ill-conceived legislative measure would be a gross deception to the hard working Americans who would fall victim to it.

Barak Obama has repeatedly advocated its passage and has the following position statement on his website:

The current process for organizing a workplace denies too many workers the ability to exercise their right to do so. The Employee Free Choice Act will allow workers to form a union through majority sign up and card checks, and strengthen penalties for those employers who are in violation. The choice to organize should be left up to workers and workers alone. It should be their free choice.

Organized labor will be pushing hard for EFCA, and if there is a Democratic Administration and Congress, passage of EFCA would be a virtual certainty. As noted by Kris Dunn this is The Hidden Career Killer for HR Pros unless you act now.