New NLRB Determination Makes It Easier For Unions To Organize Faculty At Universities And Colleges

This post was contributed by Bruce D. Bagley, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

In still another break with long-standing precedent, the National Labor Relations Board (NLRB) has once again eased the way for union organizing – this time for unions seeking to organize faculty at private sector universities and colleges. In Pacific Lutheran University, 361 NLRB No. 157 (December 2014), the Board adopted a new standard for determining when faculty may be considered to be "managerial employees," which in turn critically impacts whether they may be subject to unionization.

The seminal case in this controversial area of federal labor law is NLRB v. Yeshiva University, 444 U.S. 672 (1980), where the United States Supreme Court found that the faculty at Yeshiva were managerial employees and therefore excluded from coverage under the National Labor Relations Act (NLRA or Act). The Court found that the Yeshiva faculty "formulate and effectuate management policies by expressing and making operative the decisions of their employer." They had effective power to control or implement employer policies, such as deciding what courses would be offered, when they would be scheduled, to whom they would be taught, and determining teaching methods, grading policies, matriculation standards, which students would be admitted, retained, and graduated, etc.

In the years since 1980, the Board has struggled (at least according to some of the reviewing Courts of Appeal) with applying the Yeshiva standard. But more often than not the Board applied Yeshiva to determine that faculty, particularly tenured faculty, were closely aligned with the management of their respective institution, resulting in their being excluded from coverage under the Act.

In Pacific Lutheran, however, the Board has chosen to refine or interpret the Yeshiva standard in a manner making it harder to assert or conclude that faculty are managerial. Perhaps unfortunately for those who would have preferred the prior status quo, the facts in Pacific Lutheran easily lent themselves to those Board Members who were looking to expand coverage of the Act to cover previously-excluded faculty. The union had petitioned for a representation election in a unit of all contingent (non-tenure eligible) faculty teaching a minimum of three credits during an academic term, of which there were about 176 in the petitioned-for unit. The University asserted that approximately 40 of the 176 were managerial and therefore excluded from voting in any election that might be scheduled. The NLRB Regional Director concluded otherwise, including the 40 as eligible voters when he directed that an election take place. The University appealed to the Board, where at least 20 organizations filed various amicus briefs.

Unlike the faculty in Yeshiva, the contingent faculty at issue did not appear to exercise the same level of managerial control or implementation. The Board in Pacific Lutheran first laid out a focus upon five areas of policy making to examine whether faculty actually exercise control or make effective recommendations regarding university policies. The five areas to be examined are academic programs, enrollment management, finances, academic policy, and personnel policies/decisions, with an emphasis on the first three being "primary" areas and the latter two being "secondary." Then within each of those policy areas, the Board will seek to determine whether the faculty actually exercise control or make effective recommendations in those areas. If they do, then the Board will find the faculty to be managerial and exclude them from coverage under the NLRA. And the Board emphasized that, to be excluded, the faculty must have "actual--rather than mere paper—authority" and in order for recommendations to be considered effective, they "must almost always be followed by the administration."

Turning to the facts in Pacific Lutheran, the Board found that the faculty at issue were not managerial. According to the Board, the faculty had only limited participation in the three primary and two secondary areas of policy making noted above, noting particularly that they were typically employed on only one-year contacts which inherently limited their ability to control or make effective recommendations regarding university policy. The faculty at issue also had only limited participation in decisions affecting academic programs, were not permitted to serve on faculty standing committees, did not vote on enrollment management policies, had little or no involvement in decisions involving finances, and had limited involvement in both academic policy and personnel matters. In short, it appears that the Board may have seized upon a set of facts which in any event would have fallen short of the Yeshiva standard, in order to erect new barriers for colleges and universities to overcome in future cases where the facts might have been more conducive to finding managerial status under Yeshiva.

This case or future cases utilizing the Pacific Lutheran rationale will likely receive further review and analysis by the federal Courts of Appeal and possibly the Supreme Court. Private sector universities and colleges that wish to see their faculty remain non-unionized should however take heed. Most authorities predict that this case will spur union organizing of faculty, and therefore institutions should be evaluating their vulnerability and taking proactive steps now to lessen the likelihood of having to deal with a unionized faculty.

Would You Like Fries . . . and an Unfair Labor Practice Charge with That?

This post was contributed by Bruce D. Bagley and Lee E. Tankle of McNees Wallace & Nurick LLC's Labor & Employment Practice Group.

Mainstream media, attorneys, and business owners are discussing the meaning and impact of a two paragraph press release issued on July 29 by the Office of the General Counsel of the National Labor Relations Board (NLRB). That Office is the "prosecuting arm" of the NLRB, and in the press release, the General Counsel indicated he has authorized the issuance of unfair labor practice (ULP) complaints against franchisor McDonald's USA, LLC for the actions of its franchisees. In a typical franchisor-franchisee relationship, a franchisor, like McDonald's, may contract with a franchisee to provide the latter with use of the franchise name, logo, processes, recipes, etc., in exchange for an upfront franchise fee and sales-based royalties. So is this press release declaring McDonald's a "joint employer" with potentially over 13,000 United States franchisees the super-sized issue pundits have made it out to be?

Over the past two years, 181 ULP charges have been filed with the NLRB involving numerous McDonald's restaurants. The charges arose largely from the termination of a number of fast food workers who had participated in various protests and union organizing efforts at McDonald's franchised stores across the country. Per the General Counsel's press release, 68 of those cases were found to be meritless, 64 are pending investigation, and 43 were found to have merit. In those 43 cases found to have merit, the General Counsel contends that the various franchisees and McDonald's USA, LLC (the franchisor headquartered in Illinois) are "joint employers" and will therefore be named as parties to the complaints.

We have previously discussed the United States Court of Appeals for the Third Circuit's views on joint employer status under the Fair Labor Standards Act (FLSA), a different federal statute.

Why all the hubbub now under the National Labor Relations Act (NLRA)?

Typically, the NLRB (and the reviewing federal courts) have found that franchisees are independent operations, that franchisors like McDonald's USA, LLC are not responsible for decisions made by the franchisees about hiring, firing, wages, benefits, etc., and that consequently they are not joint employers with the franchisees. If the franchisor is deemed to be a joint employer with the franchisee, the franchisor can potentially be held liable for any violations of law engaged in by the franchisee. The General Counsel's theory, if ultimately adopted by the Board, would no doubt render the franchisor-franchisee model much less appealing to the business community. Why would any company want to license its intellectual property and business model, losing out on potential profit, if the franchisor will be held responsible anyway for actions undertaken by the separately-owned franchisee?

Unions are of course thrilled with the General Counsel's decision because they have consistently asserted that large franchisors like McDonald's and Burger King have ultimate control over everything that goes on in their franchisees' restaurants. Union activists, like those at the Service Employees International Union (SEIU), believe that by holding large franchisors as joint employers with the franchisees, workers can put more pressure on large fast food chains and other franchisors to improve employee benefits and raise wages—and perhaps even unionize McDonald's/fast food workers nationwide rather than having to organize individual elections at each franchise location.

At this stage, this is only a prosecutorial determination by the NLRB's General Counsel based on his opinion and investigation of the 40+ cases referenced above (notably the General Counsel provides no reasoning for his joint employer theory in the press release). And while his decision to authorize the issuance of Complaints is not a precedential court decision, Board Decision, or even a decision by an NLRB Administrative Law Judge, employers—especially franchisors and those who utilize contractors or subcontractors—should take heed of the General Counsel's statement. Why? The General Counsel's press release comes at a time when the NLRB itself has been reconsidering its whole approach to the joint employer issue. It is very likely that the pro-union Board will soon adopt a broader definition of the term "joint employer," once again making it easier for unions to organize employees.

What is an employer to do while we wait for a Board or court decision? If an employer is in what could be determined to be a joint employer relationship, the business may want to consider steps to further define boundaries between the two employers, in order to lessen the likelihood of a finding of joint employer status. At a minimum, employers should take reasonable measures intended to ensure that their business partners, franchisees, and subcontractors are in compliance with applicable federal and state employment laws. Stay tuned for further developments!

NLRB Rules That College Football Team Can Seek to Form a Union

This post was co-authored by Bruce D. Bagley, a Member in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

As Americans across the country anxiously stare at their National Collegiate Athletic Association (NCAA) Division I Men's Basketball brackets, the Northwestern University Wildcats are dominating the headlines in both the sports and labor law communities. In what many sports and legal commentators are calling a game-changing decision (pun intended), on Wednesday, March 26, the Regional Director for the Chicago Regional Office of the National Labor Relations Board (NLRB) ruled that certain players on the Northwestern University football team could seek to form a union. Perhaps more importantly, the Decision is quite expansive in its interpretation of the term "employee."

At the center of his Decision, the Regional Director found that scholarship recipients are actually "employees" of the University, as the term "employee" is defined in the National Labor Relations Act (NLRA). According to the Decision, "an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment." The Regional Director reasoned that Northwestern's scholarship football players are employees because they sign a "tender" before each scholarship period, are granted scholarships (payment) in exchange for their services (playing football), are under the strict control of the University's athletic department, and perform valuable services because they generated over $235 million for the school's football program over a ten year period. The Director further argued that these scholarship football players are "paid" over $76,000 per year, in the form of tuition, fees, room, board, and books – and that this scholarship payment is directly tied to their performance "at work" on the football field. Notably, the Director concluded that non-scholarship and "walk-on" players do not meet the definition of "employee," because they receive no compensation for the services they perform.

So what happens next? Northwestern has indicated its intention to file a Request for Review of the Regional Director's Decision with the full NLRB in Washington, D.C. If the Board grants the Request for Review, it will consider further briefings by the parties, and possibly oral argument. If the Regional Director's Decision is upheld, the NLRB's Chicago Office will conduct a secret ballot election in a voting unit consisting of "all football players receiving football grant-in-aid scholarships and not having exhausted playing eligibility" employed by Northwestern University.

If the Northwestern football players do eventually vote to form a union, this will give them the right to collectively bargain with their "employer", Northwestern University. There is no guarantee that they will receive additional payment or benefits at all – they could even conceivably find themselves with fewer benefits depending on the terms of an eventual collective bargaining agreement. And there are a number of potential downsides for the players – if the money they receive in scholarships is "income", the IRS could very well demand that players pay an income tax on the scholarship funds deemed payment for their athletic services. Note that, according to various press accounts, the players do not claim they wish to receive any additional compensation (at this point). As of now, they have indicated their primary concern is securing the coverage of medical expenses for current and former athletes with sports-related injuries.

The Regional Director's Decision directly impacts only Northwestern University, although certainly players at other schools may be pursuing similar actions. Remember that the NLRB does not have jurisdiction over public universities such as Penn State, Ohio State, etc. Such state-related institutions would be under the jurisdiction of state labor relations boards. Remember, too, that the Northwestern Decision is fact-specific, and that other Division I football programs could be treated differently by the NLRB.

As expected, the NCAA and many of the major college sports conferences strongly disagree with the Decision. In a statement released shortly after the Decision was issued, the NCAA stated "We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid." The NLRB concluded that scholarship football players were not "primarily students" because they spend most of their time participating in athletic endeavors. This is certainly an expansive reading of the statutory term "employee." Only time will tell if the federal appellate courts, including eventually the U.S. Supreme Court, will agree that federal labor law was intended to grant collective bargaining rights to student athletes, albeit ones that receive scholarships and whose college activities may indeed be tightly controlled by their coaches.

The National Labor Relations Board 2013 Year in Review

Recently, McNees issued its annual White Paper: The National Labor Relations Board Year in Review.  Please click here to view the full White Paper. 

From the looks of it, 2013 was a very rough year for the National Labor Relations Board! Last year, we reported that the National Labor Relations Board would face some serious legal battles in 2013. Some of those battles are over, and there are clear winners and losers. Many more battles are still being waged. All the while, the Board continued to pursue its heavily pro-union agenda.

To continue reading, click here


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.

Obama Board Expands Unions' Right To Engage In Secondary Boycotts: Stationary "Bannering" Held Not Equivalent To Picketing And Deemed To Be Lawful

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

In its first major ruling since being reconstituted by President Obama, the Democrat-controlled National Labor Relations Board (NLRB) has rejected the position of the NLRB's General Counsel and has determined that stationary bannering does not violate Section 8(b)(4)(B) of the National Labor Relations Act (NLRA). United Brotherhood of Carpenters Local Union No. 1506, 355 NLRB No. 159 (2010). This decision gives labor unions a powerful weapon: the ability to pressure a secondary (neutral) employer and its customers, in order to gain leverage over the primary employer with whom the union actually has its dispute. The facts in United Brotherhood illustrate the point below.

The Carpenters Union had primary labor disputes with four construction contractors in Arizona, claiming that the contractors failed to pay wages and benefits in accord with "area standards." In furtherance of its primary disputes, the Union protested at two hospitals and a restaurant, secondary employers with whom the Union had no primary dispute. The four construction contractors had engaged in construction work at the sites of the secondary employers.
Section 8(b)(4)(B) of the Act makes it an unfair labor practice for a union to "threaten, coerce, or restrain" a secondary employer where an object is to cause the secondary employer to cease doing business with the primary employer. At issue in United Brotherhood was whether the Union's conduct in "bannering" was the equivalent of picketing, which would have been clearly unlawful, or more like non-coercive peaceful "handbilling," which clearly would have been lawful.

At each of the secondary employers' locations the Union displayed a large stationary banner, either stating "Shame On __________," naming the hospital, or "Don't Eat At __________," naming the restaurant. The banners were three or four feet high and from 15 to 20 feet long. The banners were held in place at each location by two or three Union representatives. The banners were placed anywhere from 15 to 1,050 feet from the nearest entry to the secondaries' establishments. The Union representatives also offered flyers to anyone who would take them, explaining therein that the Union's underlying complaint was with the construction contractors, and that by using these contractors, the hospital or restaurant was contributing to the undermining of area wage standards.

At noted above, the NLRB's General Counsel (as well as the Charging Parties) argued that bannering was the equivalent of picketing, that "picketing exists where a union posts individuals at or near the entrance to a place of business for the purpose of influencing customers, suppliers, and employees to support the union's position in a labor dispute." But a majority of the NLRB disagreed (the two Republican appointees dissenting), finding that bannering was not picketing or its equivalent, because there was no "confrontational" conduct, such as patrolling back and forth in front of the entrance while carrying placards. Absent confrontational conduct, the majority concluded, bannering was more like peaceful handbilling, an exercise in "free speech," and therefore did not "threaten, coerce, or restrain" the secondary employers as would picketing.

There was a vigorous dissent by the minority members of the NLRB, who concluded there was no meaningful distinction between bannering and picketing. All parties would have agreed that a single picketer patrolling back and forth with a sign saying "Don't Eat Here Because This Restaurant Was Built With Non-Union Labor" would be engaged in unlawful secondary boycott picketing. Yet the NLRB's majority would find that three union protesters holding a much larger banner saying the same thing would not be engaged in unlawful conduct because the bannering allegedly does not rise to the level of confrontational conduct!

It will be interesting to see how this decision may be viewed by the reviewing federal Courts of Appeal. In any event, it provides a dramatic example of how the present Obama Board may construe the NLRA in an effort to expand the weaponry and capabilities of organized labor.

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

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.

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 ( 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.

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.