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

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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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.

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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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