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

Veteran Republican Senator Arlen Specter disclosed plans Tuesday to switch parties, a defection that will move Democrats closer to total control of the U.S. Senate. The switch may also revive EFCA in its original form despite Senator Specter's withdraw of support for the pro-union legislation last month. Senator Specter faces a difficult primary in Pennsylvania. 

Senator Specter was a co-sponsor of EFCA last year but withdrew his support.  In an announcement made on March 24, 2009, he proposed alternative amendments to the NLRA addressing his perceived issues in delays and problems with the unionization process.  His floor comments on his change of heart about EFCA will require some political backtracking, if he is now to support the measure consistent with his new party's position:

On the merits, the issue which has emerged at the top of the list for me is the elimination of the secret ballot which is the cornerstone of how contests are decided in a democratic society. The bill’s requirement for compulsory arbitration if an agreement is not reached within 120 days may subject the employer to a deal he or she cannot live with. Such arbitration runs contrary to the basic tenet of the Wagner Act for collective bargaining which makes the employer liable only for a deal he or she agrees to. The arbitration provision could be substantially improved by the last best offer procedure which would limit the arbitrator’s discretion and prompt the parties to move to more reasonable positions. 

For now, EFCA in its original form, may have been given new life in the Senate.

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Senator Arlen Specter announced his opposition to the Employee Free Choice Act as currently proposed. His vote was critical to the Democrats efforts to invoke cloture under Senate rules and bring the bill to a vote that would almost certainly have gained a simple majority to pass. The Senator's comments on the Senate Floor acknowledge the importance of his vote:

In June 2007, the vote on the Employee Free Choice was virtually monolithic: 50 Senators, Democrats, voted for cloture and 48 Republicans against. I was the only Republican to vote for cloture. The prospects for the next cloture vote are virtually the same. No Democratic Senator has spoken out against cloture. Republican Senators are outspoken in favor of a filibuster. With the prospects of a Democratic win in Minnesota, yet uncertain, it appears that 59 Democrats will vote to proceed with 40 Republicans in opposition. If so, the decisive vote would be mine. In a highly polarized Senate, many decisive votes are left to a small group who are willing to listen, reject ideological dogmatism, disagree with the party line and make an independent judgment. It is an anguishing position, but we play the cards we are dealt.

The Senator's floor comments left open the possibility that he would support some other initiative to reform the unionization process and identified the following specific suggestions:

SOME SUGGESTED REVISIONS TO THE NATIONAL LABOR RELATIONS ACT

(1) Establishing a timetable:

(a) Require that an election must be held within 10 days of a filing of a joint petition from the employer and the union

(b) In the absence of a joint petition, require the NLRB to resolve issues on the bargaining unit and eligibility to vote within 14 days from the filing of the petition and the election 7 days thereafter. The Board may extend the time for the election to 14 additional days if the Board sets forth specifics on factual or legal issues of exceptional complexity justifying the extension.

(c) Challenges to the voting would have to be filed within 5 days with the Board having 15 days to resolve any disputes with an additional 10 days if they find issues of exceptional complexity.

(2) Adding unfair labor practices:

(a) an employer or union official visits to an employee at his/her home without prior consent for any purpose related to a representation campaign;

(b) an employer holds employees in a “captive audience” speech unless the union has equal time under identical circumstances;

(c) an employer or union engages in campaign related activities aimed at employees within 24 hours prior to an election.

(3) Authorizing the NLRB to impose treble back pay without reduction for mitigation when an employee is unlawfully fired

(4) Authorizing civil penalties up to $20,000 per violation on an NLRB finding of willful and repeated violations of employees’ statutory rights by an employer or union during an election campaign

(5) Require the parties to begin negotiations within 21 days after a union is certified. If there is no agreement after 120 days from the first meeting, either party may call for mediation by the Federal Mediation and Conciliation Service

(6) On a finding that a party is not negotiating in good faith, an order may be issued establishing a schedule for negotiation and imposing costs and attorney fees.

(7) Broaden the provisions for injunctive relief with reasonable attorneys’ fees on a finding that either party is not acting in good faith

(8) Require a dissent by a member of the Board to be completed 45 days after the majority opinion is filed;

(9) Establish a certiorari-type process where the Board would exercise discretion on reviewing challenges from decisions by an administrative law judge or regional director.

(10) If the Board does not grant review or fails to issue a decision within 180 days after receiving the record, the decision of the administrative judge or regional director would be final.

(11) Authorizing the award of reasonable attorneys’ fees on a finding of harassment, causing unnecessary delay or bad faith

(12) Modify the NLRA to give the court broader discretion to impose a Gissel order on a finding that the environment has deteriorated to the extent that a fair election is not possible.

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On March 10, 2009, Representative George Miller introduced the Employee Free Choice Act of 2009 (H.R. 1409) The Bill has 222 cosponsors from the House of Representatives comprised of 435 members. The Bill has been referred to the House Committee on Education and Labor. You can keep track of its progress through an RSS Feed.

H.R 1409 is identical to H.R. 800 which passed in the House of Representatives by roll call vote last year. Last year's vote totals were 241 Ayes, 185 Nays, 8 Present/Not Voting. Last year H.R. 800 failed a cloture motion, preventing consideration of the bill, in the Senate by roll call vote. The totals were 51 Ayes, 48 Nays, 1 Present/Not Voting. Obviously, the political composition of Congress has dramatically changed since last year's votes.

The Text of the Bill is relatively brief but its impact is great. The Bill has three sections, streamlining union certification, facilitating initial collective bargaining agreements, and strengthening enforcement. Read the Bill so you can discuss it intelligently. Observe that there is no effective date for the legislation included in the Bill once it is passed by Congress.  However, well before the time it is enacted, employers should already have implemented a responsive strategy.

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Executive Order 13502 is the first step to funneling a significant portion of the $787 billion in Stimulus Bill money to union workers. Executive Order 13502 promotes the use of Project Labor Agreements in large scale construction projects where the total cost to the federal government exceeds $25 million. Bush Administration Executive Orders prohibiting the use of project labor agreements have been revoked under the Obama Executive Order.

The term "project labor agreement" as used in this order means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f).   Project Labor Agreements require all contractors, whether they are unionized or not, to subject themselves and their employees to unionization in order to work on a government-funded construction project. The terms of the union collective bargaining agreement are part of the public construction project's bid specifications.  In order to receive a contract, a contractor must sign the agreement and subject its employees union dues and work rules on the construction project.

E.O 13502 is currently discretionary allowing the executive agency to mandate the use of PLAs if it determines that a PLA will "advance the Federal Government's interest in achieving economy and efficiency in Federal procurement, producing labor-management stability, and ensuring compliance with laws and regulations governing safety and health, equal employment opportunity, labor and employment standards, and other matters." However, E.O. 13502 requires the Department of Labor and OMB to make a recommendation about whether broader use of project labor agreements would help to promote the economical, efficient, and timely completion of such projects. The recommendation is due by early August, 2009 and is to cover both Federal construction projects those receiving Federal financial assistance.

The likely result of the DOL/OMB study will be the expanded requirements for project labor agreements to all federal and federally assisted construction contracts. Given the enormity of government spending on public works project under the current and future stimulus bills, project labor agreements are a huge boon for unions. Similar union preferences may also find their way in other aspects of federal contracting affecting trillions of dollars in government spending.

Nonunion employers, already facing enhanced unionization risks, must further prepare to impact of project labor agreements. Strategies in this area may include business restructuring through double breasting, training managers and adopting defensive policies and practices.

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The Employee Free Choice Act will reportedly be introduced in Congress on Monday, March 9, 2009 according to the National Association of Manufacturers blog called The ShopFloor.   Unions are mobilizing their membership for passage by targeting legislators with messages like the following one appearing on the Los Angeles County Federation of Labor, AFL-CIO:

On Monday, March 9th Congressman George Miller and Senator Ted Kennedy are expected to introduce the Employee Free Choice Act into the House of Representatives. 

This is the first step in the long fight to make the Employee Free Choice Act the law in this country. We have a lot of work to do, including convincing Senator Feinstein that the Employee Free Choice Act is good for workers, our communities and critical to rebuilding our economy because it opens the door for us to earn better wages, health care and retirement benefits by signing a card to join a union.

Meanwhile, President Obama reportedly told AFL-CIO leaders that EFCA will pass giving his backing to the bill according to a Wall Street Journal report.  One labor scholar has begun an EFCA Countdown, while acknowledging EFCA's passage may be a bloody fight.

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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)

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Human Resource Professionals face a demanding legal compliance year in 2009. The following five items should be added to your "To Do" list for the first quarter of '09:

ADA Amendments Act Compliance (effective 1/1/2009):  The amendments greatly expand the definition of disability refocusing compliance on determining whether the employee is "qualified" and evaluating reasonable accommodations. Employers should consider the following:

• Revising job descriptions to define essential job functions and minimum qualifications.
• Formalizing the interactive process for assessing disability issues.
• Educating supervisors on the expanded ADA coverage.

E-Verify Registration and Immigration Compliance (effective 1/15/2009):  Government contractors and subcontracts may need to register for and use the E-Verify System for new and existing government contracts. Employers who may be covered should inventory their existing contracts and review prospective contracts and subcontracts to determine whether they are covered by the regulations.

U.S. Citizenship and Immigration Services (USCIS) has amended regulations governing the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the Form I-9, Employment Eligibility Verification. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. There are other changes to the types of acceptable documents. Employers must use the revised Form I-9 (not yet issued) for all new hires and to re-verify any employee with expiring employment authorization beginning January 31, 2009. The current version of the Form I-9 will no longer be valid as of February 2, 2009.

FMLA Regulations Implementation (effective 1/16/2009):  Amendments to the FMLA's regulations require action by employers in the following areas:

• Reviewing the regulatory changes and integrate them into your compliance program.
• Using the new forms and poster.
• Revising Employee Handbook provisions.

EFCA and RESPECT Act Planning:  This pending legislation has enormous potential consequences for employers. 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.

Wage & Hour Self-Audit:  As evidenced by Wal-Marts recent record settlement, wage and hour lawsuits will play prominently in 2009. A self-audit of compliance practices can mitigate these claims particularly in the following areas;

• Employee classification (exempt vs. non-exempt)
• Off the clock work (starting times, breaks and meal periods)
• Donning and Doffing
• Child labor

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There is an elephant in the room.  Should we talk about it or ignore it and hope it goes away?

Many employers utilize this approach when the rumblings of a union organizing campaign are heard. When EFCA becomes law, by the time the rumblings are heard, it may be too late to educate your workforce on the significance of signing a union authorization card. Employees may have already signed a card based on the promises by a union business agent.

An authorization card is a very innocuous looking form. It resembles a magazine subscription renewal, but it is a legal power of attorney that authorizes a union to act as the collective bargaining agent for the employee in negotiations with the employer. It also provides the union with data about the employee including his or her home address and telephone number so the union representatives can contact the employee or pay them a visit at home. The card typically asks for information about salary, department and type of work the employee performs. The NLRB and courts have compared secret ballot elections to "card checks" and noted there problems:

"Card checks are less reliable because they lack secrecy and procedural safeguards… union card-solicitation campaigns have been accompanied by misinformation… workers sometimes sign union authorization cards…to get the person off their back.”

There is no special mechanism in EFCA for employers to challenge the validity of the cards presented to show the union's majority status. Traditionally, card challenges are unsuccessful unless an employer can show serious misconduct or intimidation.

Employees need to know the company's position on unionization, including at least the following about signing union authorization cards:

• Employees have a right under the NLRA not to sign a card, not to support a union and to oppose unionization.
• After EFCA, signing a card can result in the unionization of the company without an election.
• Once an employee signs a card, he or she may not be able to get it back.
• Signing a card gives a union personal information that may be used to contact the employee later.

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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?”

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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.

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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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October 16th is the annual celebration of Boss’s Day, which has traditionally been the day for employees to “thank their boss for being kind and fair throughout the year”. In most workplaces, it is clear who is a boss and who is not. The boss is the one who tells you what to do, completes your performance review and hassles you when you do not follow company policy.

The term “boss” generally means “supervisor”. For us in the legal-compliance world, knowing who is a supervisor and who is not is very important. Supervisors are not paid minimum wage and overtime; cannot be members of a union; and make the company liable for their actions like sexual harassment. Organized Labor has pushed the NLRB to narrowly define supervisor, but the Supreme Court rejected previous definitions as inconsistent with the text of the NLRA. In Oakwood Healthcare Inc, the NLRB modified the definitions of "assign," "responsibly direct," and "independent judgment" (all used to determine a supervisor) to conform to the Supreme Court rulings in NLRB v. Kentucky River Comty. Care, Inc. and NLRB v. HCR.

The RESPECT Act would make three major changes to the current definition. It would eliminate the two most common supervisory duties- the authority "to assign" other employees, and the authority to "responsibly to direct" other employees. In addition, the RESPECT Act would require that the "majority of a supervisor's work time" be spent engaging in the remaining duties outlined in the NLRA definition below.

The new definition of “supervisor” under Section 2(11) of the NLRA would read as follows:

Any individual having authority, in the interest of the employer, and for a majority of the individual’s worktime, to hire, transfer, suspend, lay-off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them,or to adjust their grievances or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Changing the definition of “supervisor” would significantly affect many workplaces by:

• Create divided loyalties among front-line supervisors who assign work to employees. Under the RESPECT Act, such supervisors would be covered by the NLRA and could then form, join or assist labor organizations; be eligible to vote in NLRB supervised elections; solicit signatures for union authorization cards from "co-workers;" or picket, go on strike or engage in other work stoppages that would be inconsistent with a supervisor's duty.
• Fundamentally tip the balance between the dual functions of the national labor policy: (1) to protect the rights of rank-and-file employees in exercising their rights to form, join or assist a union without managerial or supervisory interference, while at the same time (2) ensuring supervisors act as agents in the interests of their employers in matters of labor-management relations.
• To the extent that the NLRA definition is changed, there may also be changes to the FLSA’s definition, triggering litigation involving individuals currently classified, as "supervisors" but who may not meet a new definition.

Organized Labor’s legislative wish list includes the Re-Empowerment of Skilled and Professional Employees and Construction Trades workers ("RESPECT") Act, along with similarly misnamed Employee Free Choice Act.   Candidate Obama supports both acts; while Candidate McCain opposes them. The addition of supervisors to the ranks of potential union members and the ease of organizing workforces without a secret ballot election would dramatically change the balance of labor management relations. It would also greatly increase the dues collected by unions from organized employees.

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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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