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.

NLRB's "Quickie Election" Rule Held Invalid on Technical Grounds

Back in December, we posted about the National Labor Relations Board’s (Board) resolution to change union election procedures. Among other things, the pro-union rule shortened the time between the filing of an election petition and the date of the election, thereby making it more difficult for employers to communicate with employees prior to the election. Later that month, two of the Board’s three members voted in favor of adopting the rule. The third member of the Board did not cast a vote or otherwise participate in the voting process. The rule took effect on April 30, 2012.

However, on May 14, 2012, the union election rule was held to be invalid. In Chamber of Commerce v. NLRB (pdf), the US District Court for the District of Columbia held that the Board lacked authority to adopt the final rule because a quorum of its members did not participate. Specifically, under the Labor Management Relations Act, three members of the Board constitute a quorum. However, only two Members were present during the final vote approving the rule.

It is important to note that the court’s ruling addressed only the quorum issue, refusing to reach—or express any opinion on—the merits of the final rule. The court stated that the union election rule could be lawful if issued through a procedurally sound voting process.

While the court’s decision will likely be appealed, the Board issued a press release on May 15, announcing that it has temporarily suspended implementation of the new union election procedures. The Board also directed its regional directors to revert to their prior practices for election petitions and procedures.

We will keep you updated as further developments in this area occur.

NLRB Again Postpones Employee Notice Rule's Effective Date

On December 23, 2011, the National Labor Relations Board announced that it had agreed to again postpone the effective date of its controversial Employee Notice Posting Rule.  In the news release announcing the postponement, the Board confirmed that the postponement was agreed to at the request of the federal court in Washington, D.C., which is hearing one of the legal challenges to the Notice Posting requirement. 

On October 6, 2011, we discussed the requirements of the Notice Posting Rule and the Board's announcement that it was delaying the implementation date for the Notice Posting Rule until January 31, 2012

The Notice Posting Rule will now become effective on April 30, 2012, if the challenges to the Rule are unsuccessful. 

 

NLRB Votes To Change Union Election Procedures (But Doesn't Go All The Way!)

This post was contributed by Bruce D. Bagley, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Group.

On November 30, 2011, by a vote of 2-1, a bitterly divided National Labor Relations Board (Board) resolved to move forward with some, but decidedly not all, of the procedural changes it had proposed on June 22. While the Board’s Democratic majority referenced its desire to reduce “unnecessary, expensive, and time-consuming litigation for the Board and all parties,” the dissenting Republican Member, and most observers, have more accurately described the measure as another effort to shorten the time from the filing of an election petition to the date of the election. This would make it more difficult for employers to communicate with employees prior to the vote, and make it easier for unions to win more elections (although unions are already winning elections at a historically high rate of around 70%!).

The Board’s resolution will result in the drafting of a Final Rule, which will then have to be circulated to the Board Members for approval, and if passed (very likely given the November 30 resolution), will then be published in the Federal Register. So, despite considerable publicity given to the November 30 vote, the changes are not yet imminent.

The changes would apply to those cases where the employer and union are unable to agree on the terms of a voluntary election agreement, circumstances which then require the Board to conduct a hearing. One change would be to substantially limit the issues which can be litigated at the pre-election hearing, depriving the employer of the right to litigate issues related to voter eligibility prior to the election. Indeed, such issues would be relegated to the challenged ballot procedure, with resolution by the Board after the election has been held.

But suppose the voter eligibility issue involves the common question of who is to be excluded from voting on the basis of supervisory status?

If the employer will not know prior to the election which individuals may be excluded as supervisors, the employer may then be deprived of its ability to determine whom it may rely upon for purposes of conducting its election campaign. The employer would also be deprived of its ability to know in advance of the election specifically which employees will be eligible to vote, a markedly different process than the present status-quo!

Other changes would effectively eliminate the filing of post-hearing briefs, eliminate the right to seek pre-election review of a Regional Director’s Decision by the Board, eliminate the current 25-day waiting period to conduct elections when a party has requested pre-election review by the Board, and greatly reduce a party’s ability to obtain even post-election review of Regional Director Decisions by the Board.

The good news in all of this is what the Board did not do on November 30. It left for another day further deliberation on the more onerous provisions of the June 22 Proposed Rule, such as requiring that pre-election hearings be held within seven days from filing of petition, that voter eligibility lists must include email addresses and phone numbers, etc. For a more complete recitation of the June 22 Proposed Rule, see our blog post of June 28, 2011.

We would now expect the Board majority to implement this revised Final Rule before the end of this month, when one of the Board Member’s recess appointment expires and the Board will be left without a quorum. The changes anticipated as a result of the November 30 resolution, though less onerous to employers than would have been the case if the original Proposed Rule had been fully enacted, nevertheless will further tilt the playing field toward unions as President Obama’s appointees continue their zealous efforts to foster unionization.
 

NLRB Announces Proposed Rule Changes That Will Greatly Assist Union Organizing

This post was contributed by Bruce D. Bagley, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Group, and Adam L. Santucci, Esq., an Associate in the Group.

On June 22, 2011, the National Labor Relations Board (Board) published a Notice of Proposed Rulemaking that, if finalized, would significantly change the union representation election process. According to a Board "Fact Sheet," the changes are designed to "reduce unnecessary litigation, streamline pre- and post-election procedures and facilitate the use of electronic communication and document filing." But the lone Republican Board Member, Brian E. Hayes, in a stinging dissent, seems to have more accurately characterized the proposed rule change as an "administrative fiat" which will "impose organized labor's much sought-after 'quickie election' option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition." Hayes further described the proposal as an effort "to eviscerate an employer's legitimate opportunity to express its views about collective bargaining."

The time between the date the petition is filed and the date of the election is critical for employers, because it is often the only time the employer will have to express its views regarding unionization. Often an organizing effort may have been ongoing for weeks or months without the employer's knowledge, and the employer only learns of the campaign when the election petition is filed with the Board. This means that the employees are only getting one side of the story, the union's side, prior to the filing of the petition. A shorter time between the filing of the petition and the election date will deprive employers of the time necessary to fairly present both sides of the representation question to employees.

Currently, the Board's operational goal is 42 days between the filing of the petition and the election, with the median time actually being only 38 days. Under the proposed rules, this time would be shortened significantly. The changes would require a pre-election hearing within seven (7) days of the filing of the petition and would defer rulings on any election issues until after the election, unless the issues would impact at least 20 percent of eligible voters. After an election has been directed, the employer would have only two (2) days to produce a list of eligible voters (not the current seven (7) days), which must include the names, home addresses, phone numbers, and if available, email addresses of these individuals. Currently, only names and addresses are required. In addition, the Board would have discretion to decline to review Regional Director rulings on post-election challenges.

These proposed rule changes, which also include the implementation of electronic filing of petitions, may not be quite as drastic as the changes that would have been wrought by the failed Employee Free Choice Act (EFCA). Nonetheless, the proposed changes have been highly applauded by unions (which are already winning NLRB elections - 69% of elections held in 2009 and 68% of elections held in 2010). EFCA would have eliminated secret ballot elections, required arbitration over the terms of a first collective bargaining agreement if the parties were unable to reach agreement, and increased penalties for employers that engaged in unfair labor practices. EFCA has stalled since the November 2008 elections, and it seems that the Board's real motivation in proposing the election changes is to enable organized labor to increase its representation in the private sector workforce, where only 7% of employees are currently unionized.

In other recent developments, the activist Obama Board has also filed a lawsuit against Boeing Co., over Boeing's decision to perform manufacturing work at a non-union facility in South Carolina. The Board has also been highly active in protecting and advocating the use of social media for employees and unions. And, in December 2010, the Board announced a Notice of Proposed Rulemaking that would require virtually all private sector employers to post a notice to employees regarding their rights to organize under the National Labor Relations Act. In addition, the Department of Labor has announced a Notice of Proposed Rulemaking that would require further disclosure of employer use of consultants during union organizing campaigns, in an obvious effort to discourage the use of such consultants.

These developments send a loud and clear message that the current administration emphatically supports union organizing efforts. Employers must be aware that if the Board's proposed rules become final, employers will be significantly restricted in their ability to respond to union organizing campaigns. Therefore, employers must become more proactive than ever in addressing employee relations issues now and conducting union avoidance training for their supervisors and managers.

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.

Obama Victory may give rise to Unprecedented Unionization of the American Workplace

Union membership and the public perception of the role of labor unions are relatively unchanged in recent years. Union membership was up only slightly in 2007 based on a report by the Bureau of Labor Statistics of the Department of Labor, which published the following statistics on union membership:

     Percentage of unionized workforce
     Total - 12.5%
     Public sector - 36.5%

     Private sector - 7.8%

Public perceptions of unions is also remained constant. An annually conducted Gallop Poll shows a relatively constant union approval rating hovering around 60%, with only 22% of those polled feeling that unions would be “stronger” in the future.

The 2008 Election may dramatically change the landscape of U.S. labor relations with a reinvigoration of organized labor. The following influence could align to compel unprecedented unionization:

  • Payback to Union Supporters: Democratic candidates received substantial support from organized labor both financially and in getting out the vote. This support will garner political power, which will likely translate into a pro-union legislative agenda.
  • Uncontested Legislative Agenda: Senator Obama is the cosponsor of the EFCA and RESPECT Act both of which are strongly supported by unions. A Democratic majority in the House and Senate will pave the way for an uncontested legislative agenda that will likely include these laws. Republicans could be unable to slow the process down using a “filibuster” if the Democrats secure a 60-seat majority in the Senate to invoke cloture on floor debates.
  • Economic Woes: The economy downturn will continue to hurt businesses making necessary reductions in force, smaller paychecks and other cuts in benefits. The promises of job security and better wages are typical union themes. Nervous workers may turn to unions for help.  Traditionally, unions were forced to the bargaining table where strikes were their primary weapon to put economic pressure on an employer. The historic economic balance between unions and employers will be upset by passage of the EFCA, which mandates arbitrator-crafted contracts within 120 days after initial union recognition.
  • Unprepared Employers: Passage or the RESPECT Act and the EFCA would be a one-two punch for which many employers will be grossly unprepared. RESPECT would make many working supervisors eligible to unionize and to assist a union in collecting cards and other organizing activities. Employers would be unable to use these working supervisors as advocates for their union-free message or to collect intelligence on organizing activities. The EFCA would eliminate the secret ballot and mandate first contracts through arbitration.

 

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.

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.