Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

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.

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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.

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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.

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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.

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