Fair Share Fees Unconstitutional in the Public Sector? Not So Fast

The United States Supreme Court has been issuing employment-law related decisions like a boss over the past week or so. Many observers thought that the Court's decision in Harris v. Quinn (pdf), a case examining the constitutionality of union fair share fees, would result in more fireworks (sorry, a little 4th of July humor for you). However, in most respects, Harris was a dud.

The issue in Harris was whether a requirement that public sector employees pay "fair share" fees to a union was compelled speech in violation of the First Amendment. Fair share fees are fees that non-union members must pay to the union in order to reimburse the union for the costs of representing the employees in collective bargaining and related matters. These fees are required even though the employee is not an actual member of the union because, under the law, the union has the obligation to fairly represent all employees, whether or not the employee is a member of the union. The payment of fair share fees is typically authorized by state law. In those states where fair share fees are authorized by law, non-union member employees are typically forced to pay the fair share fee.

That was the case in Harris, which dealt with a specific group of employees, Personal Assistants (PAs), who provide in-home personal care services funded by Medicaid. Although employed by the individual to whom they are providing care, PAs are also employees of the state of Illinois by operation of state law. In addition, under Illinois law, PAs were permitted to form a union and nonmembers could be compelled to pay fair share fees. The PAs were represented by the Service Employees International Union and several of the non-union member PAs took issue with the required payment of fair share fees to a union that they did not support.

The Supreme Court has previously held fair share fees to be constitutional as they can assist in keeping labor peace and prevent non-dues paying employees from "free-riding "on the backs of dues-paying members. The majority in Harris really dismantled this prior case law and concluded that these justifications for the payment of fair share fees were not sufficient to overcome a First Amendment challenge. However, the Court came up short of expressly overruling its 1977 decision in Abood v. Detroit Bd. of Educ., which had declared fair share fees constitutional.

The Court decided Harris based on its specific facts, and held that the PAs were in a unique situation. The Court held that the justifications supporting fair share fees were not sufficient to overcome the challenge with respect to the PAs. The Court found that the labor peace justification was flawed. In addition, the Court found that the union was limited in the ability to negotiate on behalf of the PAs, and therefore, the free-riding concern was not that significant with respect to the PAs. Therefore, the Court concluded that, in this specific situation, the First Amendment prohibits the collection of the fee from PAs who do not want to join or support the union.

Although somewhat factually complicated, the Harris case had the potential to send shock waves through the public sector labor community. If fair share fees were declared unconstitutional, public sector unions would have suffered a significant negative financial impact, and as a result, their political clout would have likely been significantly diminished.

In the end, it appears that this was a case of much Abood about nothing (sorry a little stare decisis humor). Fair share fees in the public sector survive in most cases, for now. The Court did significantly undermine the legal precedent upon which fair share fees stand and that could mean a change in the future. But for now, fair share fees are constitutional in the vast majority of cases.

Pennsylvania Supreme Court To Consider When a Public Sector-Related Entity May Subcontract Bargaining Unit Work to Private Sector Contractors Without Bargaining

This post was contributed by Gina E. McAndrew, a new associate in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Scranton, Pennsylvania.

In a case which will interest public and private sector employers alike, American Federation of State, County and Municipal Employees, District Council 87 v. Pa. Labor Relations Bd.the Pennsylvania Supreme Court is poised to address important issues regarding the subcontracting of public sector bargaining unit work to private sector contractors.

The work in question is the work of the Luzerne/Schuylkill Workforce Investment Board ("WIB"), which was created under federal and state law to "increase local employment through the provision of educational training and services, which are paid for by federal funds." Previously, these duties were performed by the Luzerne County Workforce Investment Development Agency ("County Agency"), but the WIB decided to issue a Request for Proposals to explore whether a subcontractor should be hired to perform the services. The County Agency employees were represented by AFSCME (the "Union"), and the Union demanded to negotiate with the County regarding the potential subcontracting. The County did not respond to these demands and the WIB proceeded to issue the RFP.

The RFP indicated that the decision was subject to approval by both Luzerne and Schuylkill Counties' Commissioners; however, the Commissioners did not act on recommendations forwarded by the WIB. The County Agency bid on these services, but was not recommended for or awarded either contract. The WIB proceeded to award contracts to bidders and enter into contracts with third-party contractors. Thereafter, the Union filed an unfair labor practice charge against Luzerne County for unilaterally subcontracting without bargaining.

A hearing examiner issued a Proposed Decision and Order, finding that the WIB was controlled by the County, and thus the County had committed an unfair labor practice. The hearing examiner determined that the chief elected officials directed the WIB to seek bids, the RFPs indicated the Commissioners had to approve the contracts, and that the WIB was required to act with the agreement of these officials on certain matters. However, the Pennsylvania Labor Relations Board reversed that decision, finding that the County did not control the WIB, as it was the WIB's decision to subcontract, issue the RFPs, review bids, choose successful bidder(s) and enter into the contracts. As such, the Board found the County did not commit an unfair labor practice when a third party (WIB) made the decision to subcontract.

The Union appealed to the Commonwealth Court. In upholding the Board's decision, the Court found no error in the Board's factual conclusions that WIB independently decided to subcontract. The Court also noted that the County Agency attempted to retain its contracts by submitting a bid, as it had done at least once previously, and that the disbursement of funds was at the direction of the WIB. The Court held that although the chief elected official partners with the WIB to create a local plan and approves the budget, this does not mean that the local official controls the WIB. The Court concluded that WIB was "an independent third party not subject to the collective bargaining agreement" and its actions were "not attributable to the County."

However, the Court's ruling was not unanimous. In his dissent, Judge Pellegrini, joined by Judge McGinley, opined that the Board erred in finding the County had not committed an unfair labor practice, as the County failed to negotiate to a bona fide impasse before subcontracting.  Judge Pellegrini disagreed with the majority's ruling, reasoning that the WIB was part of County government, as its purpose was to "advise and assist" County officials and had no authority to enter into a contract authorizing the disbursement of funds; the County had control over the WIB based upon the facts of record, including that the RFPs indicated that decisions were subject to the Commissioners' approval; and the WIB did not have a "separate legal status."

The Pennsylvania Supreme Court has agreed to hear this issue on appeal. The decision will likely have significant implications for public sector employers, and their various related and affiliated entities, as well as private sector organizations seeking to do business with these entities. Stay tuned for future updates on this important topic.

NLRB Finds that not all Whining and Complaining Protected by NLRA

Stop me if you have heard this one, an employee was upset about his pay rate…

Seriously, an employee upset about his pay was at the heart of a recent decision issued by the National Labor Relations Board that explored the protections afforded by the National Labor Relations Act ("Act"). The employee in question was hired to perform waterproofing duties on a project at a university in Ohio. The project was a public project, and therefore, it was covered by the applicable prevailing wage laws. The employee, however, was not happy about the prevailing wage rate that he received on the project, and essentially complained about his wage rate throughout the entire time he spent working on the project. In fact, as the foreman testified, the employee complained about basically everything during his brief tenure with the employer.

No Good Deed Goes Unpunished
According to the foreman, the employee "whined" and "complained" throughout the project about nearly everything. The employee apparently constantly voiced his opinion that the company was doing "everything wrong." (You may have heard that one before too!) As it turns out, the employee did receive some pay increases during the term of the project. However, he often told other employees about the wage increases, which led to some discontent and caused at least one long term employee to quit (apparently feeling that he should have also received wage increases even without having to complain). Eventually, the payroll clerk wrote the employee a note on his pay stub that stated, "Please keep your pay to yourself."

Under the Act, employees are permitted to engage in concerted protected activity. This includes discussions regarding terms and conditions of employment, such as wages. Accordingly, the Board quickly concluded that the handwritten statement on the pay stub was a direct restriction on protected activity, and therefore, a violation of the Act.

Some Bad Deeds need not be Forgiven
The employee was laid off at the end of the project, and proceeded to file multiple complaints against the company, including a complaint to the university that the work performed on the project was "shoddy." Before the Board, the employee argued that his termination was retaliation for engaging in protected activity, i.e. complaining about his wages. The company, however, argued that the employee was terminated because the project came to an end and it had no more work for the employee. The Board agreed with the company. The Board concluded that there was no evidence to suggest that the employee's complaints about his pay were the reason for his lay off. The Board noted that the employee had received pay increases after he complained, and that several other employees were laid off at the conclusion of the project.

The employee also argued that the fact that the company failed to rehire him for other projects was in retaliation for his protected activity. The company argued that it would not rehire the employee because of the allegations that he made to the university regarding the quality of the company's work. The Board actually sided with the company on this one, finding that its explanation was credible, and that the statements about the quality of work in this instance were not protected activity.

It seems that employers are regularly finding themselves in hot water with the Board as a result of overly restrictive policies and procedures. Even in situations like the present case, where there were obvious negative consequences following the employee's discussion of his wage rate (another employee quit), the Board will find a violation of the Act. In fact, the Board noted that the motivation for the restriction on the employee's conduct was "irrelevant."

Nonetheless, for some of us it is refreshing to be reminded that there are some limits to the protections of the Act. Indeed, not all "complaining and whining" is protected.

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


Supreme Court Rules That "Donning and Doffing" Protective Gear Subject to Collective Bargaining; Leaves Door Open for Future Claims

On Monday, January 27, 2014, the United States Supreme Court unanimously ruled that a group of unionized steel workers at U.S. Steel Corporation did not need to be compensated for the time they spent "donning and doffing" safety gear before and after work. Justice Antonin Scalia wrote for the majority in Sandifer v. United States Steel Corp., Case No. 12-417 (Jan. 27, 2014), a case he described as requiring the Court to determine the meaning of the phrase "changing clothes" under section 203(o) of the Fair Labor Standards Act (FLSA). Although section 203(o) applies only to employers with collective bargaining agreements, certain aspects of the decision could have broader implications in "hours worked" cases under the FLSA.

Plaintiff Clifton Sandifer led a class-action suit representing a group of current and former employees of a U.S. Steel facility in Indiana. The Plaintiffs sought to recover backpay for time spent "donning and doffing" protective gear that U.S. Steel required employees to wear due to hazards encountered working in steel mills. Protective gear cited by the Plaintiffs included flame-retardant jackets, work gloves, leggings, "metatarsal boots" and respirators. Under the terms of the applicable collective bargaining agreement between U.S. Steel and the union, the time spent dressing and undressing was not compensable.

Section 203(o) of the FLSA provides that "any time spent in changing clothes or washing at the beginning or end of each workday" may be determined by a collective bargaining agreement. While the Sandifer Plaintiffs recognized that their collective bargaining agreement stated that dressing and undressing was noncompensible, they argued that the donning and doffing of protective safety gear does not qualify as "changing clothes" and thus must be compensated. The Supreme Court rejected this argument but left the door open to future claims where the protective gear is less like clothing and more like equipment.

To determine whether the protective gear in question was "clothes", Justice Scalia turned to his orignalist roots and examined the dictionary definition of clothing from the time Section 203(o) was passed in the late 1940s. Quoting Webster's Dictionary, Scalia stated that "clothes" are "items that are both designed and used to cover the body and are commonly regarded as articles of dress". It is important to note that the Court did not go so far as to define "clothes" as "essentially anything worn on the body—including accessories, tools, and so forth." The Court's definition of clothes "leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices."

Justice Scalia found that the items at issue in the case fell within the definition of clothes, except for items like glasses, earplugs, and respirators which are not typically considered articles of dress. The Court then examined whether the donning of items like earplugs and respirators could be considered de minimis and, thus, noncompensable. While Justice Scalia did not apply the de minimis doctrine, he ultimately concluded that the time spent putting on the clothes and other protective gear could, on the whole, be characterized as "time spent changing clothes," even though some of the items fell outside the definition of clothes. The Court concluded: "If an employee devotes the vast majority of the time in question to putting on and off equipment or other non-clothes items (perhaps a diver’s suit and tank) the entire period would not qualify as “time spent in changing clothes” under §203(o), even if some clothes items were donned and doffed as well. But if the vast majority of the time is spent in donning and doffing “clothes” as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted."

Employers with unionized employees should make sure that the compensability of time spent changing clothes is covered under their collective bargaining agreement. Such employers should also assess the activities that take place during noncompensible time to confirm that a majority of this time is spent washing and changing "clothing" as defined by the Supreme Court. If most of the time spent by workers relates to donning and doffing equipment, rather than clothing, failure to compensate for this time could result in liability. Finally, we also suggest that all employers consider whether the Court's treatment of the meaning of the term de minimis under the FLSA might require any changes to time keeping procedures.

NFL Hires Outside Investigator . . . Should You?

This post was contributed by Adam Santucci, Esq., an Associate in McNees Wallace & Nurick LLC's Labor & Employment Law Group.

The National Football League ("NFL") has hired an outside investigator to handle the complaint made by Jonathan Martin, an offensive lineman for the Miami Dolphins. The national news media cannot seem to get enough of this story, and the coverage has been relentless. The media, however, seems to have focused on the bullying angle. But for some of us, based on the reports, it looks like there was more than just bullying going on. If the allegations are true there may be violations of the league's workplace harassment policy as well. Given the dynamics here, and the high profile nature of the situation, we think it makes a lot of sense for the NFL (and the union) to bring in an investigator from the outside.

An employer's investigation of workplace harassment is often critical to its subsequent defense of any related lawsuits. A good investigation that results in appropriate corrective action typically means a good defense to a claim of workplace harassment. The law encourages employers to be proactive and promptly investigate incidents that occur and rewards employers who take those steps.

But who should conduct the investigation?

We often talk about this issue with our clients: who is the best person to investigate a complaint of workplace harassment? The answer is, it depends. In many instances, a fresh perspective is helpful. In others, using an investigator familiar with the players may be better.

  • Will this investigator be a good witness if necessary? As noted above, the investigation itself may be an issue in any subsequent litigation and the investigator may become a witness, so pick a good one!
  • Will the investigator be able to represent the employer if there is a lawsuit? In some instances, counsel who serves as the investigator may not be able to defend the case.
  • Is this a particularly difficult situation? Outside investigators often have experience in handling difficult cases, including cases that involve employees at the upper levels of the organization.
  • Is there an allegation that involves the Human Resources Department?
  • Evidence created by the investigation may be discoverable in subsequent litigation.
  • The use of an outside investigator may strengthen the appearance of impartiality.

Also keep in mind that the investigator must be impartial (and viewed as impartial) to be effective, and must be familiar with your policies. The investigator must also be a good communicator, because educating those involved during the process is important. You may even want to consider using two investigators in appropriate cases.

As the NFL situation indicates, picking an investigator is important, and there are certainly times when it is in an employer's best interest to use an investigator from outside of the organization.

Three in a Row? That's a Trend

It seems like we have been spending a lot of time discussing successful appeals of arbitration decisions lately, which is been a good thing for Pennsylvania employers. Recently, we reported on two cases in which an employer successfully appealed a negative arbitration decision. Historically, such successful appeals have been difficult. However, the current trend continued when a decision from the Commonwealth Court of Pennsylvania, sitting en banc (as full court rather than simply a three judge panel), rounded out the trifecta.

In Pa. Dept. of Corr. v Pa. State Corr. Officers' Assoc. (pdf), the court was asked to analyze whether a grievance arbitrator's decision reinstating corrections officers accused of inmate abuse was rationally derived from the collective bargaining agreement, and of so, whether the award violated a well-defined public policy. You may recall from our prior posts that these questions call for the application of the "essence test" and the limited public policy exception to that test.

Let's take a step back.  The grievants had been suspended pending investigation of corroborated allegations of inmate abuse, and the union filed grievances challenging the suspensions. The first issue before the arbitrator was whether the grievances were timely filed. The parties' agreement required that grievances be filed within 15 days of the alleged "occurrence" giving rise to the dispute. The arbitrator found that the grievances were in fact timely filed, even though they were filed well beyond 15 days after the implementation of the suspensions. The arbitrator reached this conclusion by finding that the suspensions constituted continuing violations of the agreement. The arbitrator held that, as a result, the grievances were timely filed even if back pay would be limited to the date the grievances were filed. Basically, the arbitrator held that each day of suspension gives rise to a new occurrence, triggering a new 15 day period.

What did the court have to say?  The court disagreed and succinctly concluded that the arbitrator's decision, which did not cite to any provision of the agreement, lacked foundation in and failed to logically flow from the agreement. Put simply, the arbitration decision failed the essence test. The court did not reach the issue of whether the decision would violate a public policy.

So what?  For those of us with responsibilities for responding to grievances, this decision is significant. The court seems to have thrown out the continuing violation theory, a theory that unions often rely on when grievances are untimely filed, but there is some ongoing impact on the grievant.  Because most agreements prohibit an arbitrator from adding language to the agreement, as the agreement did here, without a specific provision providing for its use, employers should strongly consider taking the position that the continuing violation theory is dead.

NLRB to Expand Outreach Campaign Targeting Nonunion Employees

The National Labor Relations Board’s (“NLRB”) aggressive campaign to educate non-union employees about their rights under the National Labor Relations Act (“NLRA”) is in full swing.

In addition to the mandatory notice posting requirement that will go into effect for all employers on April 30, the NLRB recently announced its plan to launch a new website designed to educate both union and non-union employees about their rights under the NLRA. These rights include the rights to discuss working conditions and to present grievances to their employers. Under the NLRA, employees have a right to engage in such “protected concerted activity,” even when they are not union employees or involved in union organizing efforts.

The new website will be rolled out in mid-April, just before employers are required to post the Notice of Employee Rights. The NLRB also plans to distribute pamphlets, published in both English and Spanish, addressing workers’ rights and to publicly discuss this information across various media outlets.

This aggressive educational campaign could lead to more complaints from workers. Accordingly, employers should ensure that they have appropriate policies in place that comply with the NLRA. Employers also should ensure that their managers are properly informed of employee rights under the NLRA and trained on how to respond to employee complaints.

We will keep you updated as new developments are announced.

The State of State Unions: A Year in Review

This post was contributed by Tony D. Dick Esq., an Associate in McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

Many watched intently in early February as the political theater unfolded in Madison, Wisconsin when Republican Governor Scott Walker proposed legislation to limit the collective bargaining rights of most state government employees. In a matter of days, the Capitol would be swarming with protesters and demonstrators on both sides of the issue. What followed was weeks of sit-ins in the Capitol, a mass walkout by all 14 Democratic State Senators to block a vote on the proposed law, the unprecedented recall elections of 6 Republican and 3 Democratic state lawmakers and a bitterly fought campaign to unseat an incumbent State Supreme Court Justice widely viewed as a pro-Walker.

Those in favor of public sector reform argue that collective bargaining limits are necessary to deal with steep budget shortfalls. Projections from Governor Walker’s office estimate that the state will save approximately $30 million this year as a direct result of the new law. On the other side, pro-union allies contend that moves like the one in Wisconsin are nothing more than a political power grab designed to bust up unions and cripple their longstanding support of Democratic candidates. Observers on both sides generally agree though that the movement to reform public sector collective bargaining rights has invigorated the debate on the role of unions in today’s uncertain economic climate.

Wisconsin’s law essentially limits collective bargaining for all state employees, except police officers, firefighters and state troopers, to negotiating wages. Essentially, state employees are limited to negotiating an increase in wages commensurate to the rise in inflation, unless voters approve additional wage increases through a referendum. In addition, state employees are required to contribute more toward their healthcare costs and pensions. And, under the law, unions can no longer require members to pay dues and must hold annual votes to maintain their status.

By March, even with the burgeoning protests in Wisconsin, 18 other states would follow its lead and propose various forms of legislation to curtail the collective bargaining powers of public unions. Of these 18 states, Ohio’s efforts have garnered the most media attention. Under Ohio’s Senate Bill 5, passed at the end of March, state employees would be required to contribute more of their salaries toward guaranteed pensions and healthcare costs. The bill also outlaws public sector strikes, bans binding arbitration, replaces a seniority system with merit-based pay for workers and gives counties and other legislative bodies, such as school boards, the final say on what offers to accept. If the legislative body refrains from selecting either side’s last best offer, the public employer’s final offer would win out.

In states like Indiana, Idaho and New Hampshire, less ambitious legislation has been introduced to curb state unions. The laws passed in Indiana and Idaho deal exclusively with narrowing the scope of collective bargaining rights for teachers. While in New Hampshire, the legislature is currently reconciling separate right-to-work bills passed in its House and Senate. The final bill would allow workers who opt out of a union to stop paying union fees.

Unions have not sat by idly following the wave of new legislation. The International Association of Fire Fighters announced in April that it will not support any federal candidates this election cycle as a protest against the collective bargaining laws. During the 2010 election cycle, it spent almost $15 million on behalf of federal candidates. In Ohio, in the months since the passage of Senate Bill 5, unions and their members have regrouped and worked to collect enough signatures to place a referendum on the ballot challenging the law. By mid-July, over 1.3 million Ohioans signed a petition to trigger a referendum. Issue 2 is officially on the ballot and will determine the fate of the law in Ohio going forward. Two weeks before the election, the latest polling data from Quinnipiac forecasts the likely repeal of Senate Bill 5 – 57 percent to 32 percent.

Meanwhile, in Wisconsin, the first rounds of collective bargaining under the new legislation have begun. The school board in Neenah, Wisconsin negotiated with teachers on the only matter that they are legally allowed to bargain for – a salary increase based on increased inflation. The pay increase for the teachers will not exceed 1.7 percent and they will see their benefits decrease by 4.3 percent. Teachers in Neenah will also pay more toward their health insurance premiums and pensions. The teachers reported that the school board negotiated fairly given the constraints of the new law.

NLRB Postpones Employee Notification Rule's Effective Date

This post was contributed by Adam R. Long, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Group. 

In August, the National Labor Relations Board (NLRB) issued a controversial Final Rule that would require most private-sector employers to notify their employees of their rights under the National Labor Relations Act with a new mandatory workplace poster. The rule's effective date originally was November 14, 2011.

Groups like the National Association of Manufacturers, the National Federation of Independent Business, and the U.S. Chamber of Commerce filed lawsuits seeking to block the implementation of the rule's notice-posting requirements. These groups challenged the rule on various grounds, including their position that the rule's notice-posting requirements exceed the NLRB's statutory authority.

On October 5, 2011, the NLRB announced that it was delaying the implementation date for the notice-posting rule until January 31, 2012. The NLRB claimed that it postponed the deadline "in the interest of ensuring broad voluntary compliance."  Other reports indicate that the NLRB postponed the implementation date in response to a specific request to do so by the Judge in one of the pending cases challenging the rule.

Regardless of the NLRB's actual motivation, the decision to delay the notice-posting rule's effective date gives most private-sector employers a reprieve from posting the controversial notice. Employers should continue to monitor this issue, as courts considering the various challenges to the rule likely will issue decisions between now and January 31 that may affect the posting requirement and/or its effective date.

Please note that the NLRB's notice-posting rule and the postponement of its effective date do not affect federal contractors, who already are required to post a similar notice under Executive Order 13496 . Executive Order 13496 applies to (1) most contractors and subcontractors who hold a Federal or Federally-assisted construction contract in excess of $10,000; (2) most non-construction contractors and subcontractors who have a government contract or subcontract, or government bills of lading, of $10,000 or more; and (3) any entity that either serves as a depository of Federal funds in any amount or is a financial institution that is an issuing and paying agent for U.S. savings bonds or savings notes in any amount.

First NLRB Administrative Law Judge Opinion On Employee Discipline For Social Media Use

On September 6, 2011, the National Labor Relations Board (Board) announced that a Board Administrative Law Judge (ALJ) had issued the first decision involving employee social media use. We previously reported that the Board has been very active in this area, issuing complaints and guidance, but this is the first actual decision from a Board ALJ. In the decision, Hispanics United of Buffalo (PDF), the ALJ ruled that the non-profit employer unlawfully discharged five employees after the employees posted comments on Facebook.

The ALJ first found that the small non-profit organization (which after the terminations at issue had only 25 employees) was covered by the National Labor Relations Act (NLRA), even though the organization operated only in the Buffalo, New York area. The ALJ went on to hold that the employees' Facebook comments amounted to concerted protected activity under the NLRA, and as such, their comments were shielded from discipline.  The ALJ concluded that the terminations were therefore unlawful, and ordered the employees reinstated with back pay.  

The facts are as follows:

An employee of Hispanics United of Buffalo, Inc. (HUB), who we will call the “Targeted Employee,” was repeatedly critical of her coworkers, because she believed that the coworkers did not provide adequate services to HUB’s clients. In October 2010, one of the criticized employees complained about the Targeted Employee on Facebook, and several of her coworkers commented on the post, which used the Targeted Employee’s name. Different people will likely have different views of the Facebook posts, but there is no dispute that the comments included vulgar language, sarcasm, and in my opinion, inappropriate comments that were critical of HUB’s clients.

The Targeted Employee sent a text message to HUB’s Executive Director complaining about the Facebook posts, which she believed constituted “cyber-bullying.” A few days later, the Executive Director terminated the five employees that were involved in the Facebook discussion. The Executive Director determined that the comments violated the HUB’s harassment policy.

After a hearing, the ALJ concluded that the Facebook discussion was concerted protected activity under the NLRA. The ALJ found that the discussion involved the terms and conditions of employment, specifically, job performance and staffing levels (even though there was no mention of inadequate staffing and none of the employees claimed that they actually performed their jobs satisfactorily).

The ALJ also found that the vulgar language and sarcastic remarks were not sufficiently inappropriate to lose the protection of the NLRA. The ALJ held that the some of the employees did not use the Targeted Employee’s name, that the posts were not made from HUB computers, and that the comments were not really in violation of the HUB harassment policy.

The ALJ commented that “regardless of whether the comments and actions of the five terminated employees took place on Facebook, or ‘around the water cooler’ the result would be the same.”  But interestingly, the ALJ held that because the comments were not made in the workplace, even though they were viewed by several coworkers and a member of HUB’s board of directors, they were less egregious. Some might argue that posts on the Internet can be far more detrimental to an organization than passing comments “around the water cooler,” since the posts may be viewed by anyone, such as clients, customers, and board members, and the posts may remain available for viewing for a long period of time.

Nonetheless, the ALJ concluded that the employees were unlawfully terminated for engaging in concerted protected activity, and therefore, he ordered all five employees reinstated with back pay and interest.

This first ALJ decision is important because it serves as a reminder that the Board has broad jurisdiction to enforce the NLRA, which covers both union and non-union employers, and both for-profit and non-profit employers in some cases.  All employers, whether unionized or not, must be sure to conduct a thorough investigation before issuing disciplinary action, particularly if that disciplinary action will be based on an employee’s social media use. The investigation should document exactly what was said, who said it, when it was said, who may have viewed the posts, and whether or not the comments involved "terms and conditions of employment." As this case illustrates, that phrase may be interpreted broadly.

National Labor Relations Board Issues Social Media Report

Recently, the Acting General Counsel of the National Labor Relations Board (Board) released a report, basically a score card, detailing the Board’s actions on 14 cases involving social media. Employee social media use has been a hot topic for the Board, for both union and non-union employers, and for us.

The Acting General Counsel’s report (PDF) is insightful and it covers a wide range of issues, including when employee social media use is protected by the National Labor Relations Act (NLRA), the permissible scope of employer social media policies, and how unions can get in trouble when using social media.

The report’s discussion of cases involving employee discipline confirms things we have previously discussed: the NLRA protects employees who engage in concerted activity from discipline, but there are limits to that protection and certain activity will lose the protection. Based on a review of the report, it seems that the Board is willing to stretch the definition of protected activity to shield employee social media activity. For example, the report indicates that the Board has found protected activity where an employee called a supervisor an “a—hole” and were an employee referred to a supervisor as a “scumbag.” It seems that the home team is getting the calls.

The report also details when employer social media policies end up out of bounds, which apparently, is quite frequently. The Board did not approve of any of the employer social policies reviewed, and found only one provision of one policy acceptable. The Board found that all of the policies were overly broad and not narrowly drawn; and therefore, in violation of the NLRA.

The report provides valuable insight into the Board’s view of social media in the workplace, and the odds that will face employers, both unionized and non-union employers alike, if employees file charges related to social media use.

Public Employers Still Cannot Unilaterally Impose Restrictions on Union Employees' Tobacco Use

This post was contributed by Kelley E. Kaufman, Esq., an Associate in McNees Wallace & Nurick LLC's Labor and Employment Law Practice Group.

In a recent decision, the Supreme Court of Pennsylvania evaluated whether a public employer's ban on employee tobacco use in the workplace affected a "working condition" that was subject to the employer's statutory duty to bargain with the union representing its employees. In Borough of Ellwood City v. Pa. Labor Relations Bd. (pdf), the Court held that, under the Pennsylvania Labor Relations Act, the municipal employer's ban on the use of tobacco products in the workplace was a mandatory subject of bargaining.

The Borough of Ellwood passed an ordinance in 2006, which banned tobacco use on or in Borough-owned buildings, vehicles and equipment – a ban that applied to the Borough's unionized police officers. The Borough unilaterally implemented the ban without bargaining with the union. The union subsequently filed an unfair labor practice charge against the Borough with the Pennsylvania Labor Relations Board, alleging that the Borough failed to bargain over a mandatory subject of bargaining. On appeal, the Court found for the Union, holding that tobacco use restrictions constitute a mandatory subject of bargaining – not an "inherent managerial prerogative." Thus, the Borough was obligated to bargain with the union over the tobacco restrictions.

The Ellwood Court also addressed potential conflicts between a municipality's ability to enact legislation protecting the health, welfare, safety, and general welfare of its citizens with the rights of the police officers to collectively bargain. In reconciling this conflict, the Court noted that, while local legislation promoting clean air and warning of the risks of tobacco use was laudatory, such legislation cannot serve as a barrier to negotiations over the topic when it constitutes a working condition subject to mandatory bargaining.

Although the Borough is a public employer, the Court's decision has implications for public and private employers alike. Many employers are subject to the Pennsylvania Clean Indoor Air Act and similar local ordinances which may impose restrictions on tobacco use in workplaces and public areas. However, unionized employers who unilaterally change existing policies and practices to comply with such restrictions may face challenges from the unions with which they deal. For this reason, it may be advisable for unionized employers to discuss applicable tobacco restrictions and the impact of these restrictions with the union before implementing changes.

NLRB Issues Complaint Over Facebook Posts Mocking Supervisor

In what the National Labor Relations Board's (the "NLRB") Acting General Counsel called a "straightforward case" under the National Labor Relations Act ("NLRA"), the Hartford Regional Office of the NLRB issued a Complaint (pdf) alleging that an employer illegally terminated an employee who posted disparaging remarks about her supervisor on her personal Facebook page. While the October 27, 2010 Complaint is only an accusation, and not a formal ruling from the NLRB, the repercussions of this action are critically important for both unionized and non-union employers.

Employees of the employer, American Medical Response of Connecticut, Inc., are represented by Teamsters Local 443. One of those employees posted negative, critical comments mocking her supervisor on her personal Facebook page. Other employees commented on the posts, which prompted the employee to make further negative statements. The employee was subsequently terminated by the employer for posting the disparaging comments on the Internet, because the posts violated the employer's social media policy. The NLRB conducted an initial investigation, and determined that there was enough evidence to warrant a hearing to determine whether the employer violated the NLRA.

The Complaint alleges that the termination violated the NLRA's prohibition against punishing employees for engaging in concerted protected activity. The NLRB Regional Director has taken the position that the employee's disparaging comments about her supervisor were protected activity under the NLRA because the employee was discussing her working conditions. Under the NLRA, employers are prohibited from punishing employees for concertedly discussing wages, benefits and other working conditions. In the NLRB's view, the fact that other employees commented on the employee's post meant that there was concerted activity by the employees.

Importantly for both unionized and non-union employers, the Complaint also alleges that the employer's policies were overly broad and restricted employees from discussing working conditions. In the view of the NLRB Regional Director, the policies alone violate the NLRA.

While this matter is only at the Complaint stage, the Complaint itself is an eye-opener for many employers and may be another sign of things to come from the NLRB. On September 9, 2010, we added a post about President Obama's appointments to the NLRB, and the likelihood that the NLRB would continue to pursue a decidedly pro-union agenda.

Unionized and non-union employers alike must be sure to review all of their policies, including their social media and internet posting policies, to ensure that the policies do not restrict employees' abilities to discuss wages, hours and other working conditions. Also, we will continue to provide updates as this case unfolds, so employers should also be sure to check back for further posts.

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.

Failure to Pay Union Dues is Willful Misconduct under Pennsylvania Unemployment Compensation Law

In the recent case of Anderson Equip. Co. v. Unemployment Comp. Bd. of Review, 994 A.2d 1192 (Pa. Commw. Ct. 2010) (pdf), the Commonwealth Court of Pennsylvania examined whether an employee engages in willful misconduct when he fails to pay union fees and dues in violation of his employer's collective bargaining agreement (CBA).  The court held that the employee engaged in willful misconduct by failing to pay his union dues and that the employee did not have good cause for his misconduct.  Thus, the court found that the employee was not entitled to unemployment benefits.

The CBA between the employer and the union required all employees to be members of the union, and prohibited the employer from employing non-union members for more than 90 days. The employee in Anderson Equip. Co. failed to join the union because he claimed he did not have the money to pay the union initiation fees and union dues. The employee attempted to work with the union to establish a payment plan, but was unsuccessful. After several months and several warnings, the employer fired the employee for his failure to secure his union membership.

Under the Pennsylvania Unemployment Compensation Law, an employee is not eligible for unemployment compensation benefits if he or she is discharged for willful misconduct. Willful misconduct includes a disregard for the employer's interest, a deliberate violation of work rules, the disregard of standards of behavior expected of employees, or a substantial and intentional disregard for the employer's interest or the employee's duties and responsibilities. If the employer proves that the employee engaged in willful misconduct by deliberately violating a work rule, the employee can attempt to establish good cause for the violation. Good cause is established if the employee acted justifiably and reasonably under the circumstances.

In Anderson Equip. Co., the primary issue was whether the employee's inability to pay the fees and dues was good cause for violating the work rule. The court found that the employee's inability to pay the fees did not constitute good cause because the former employee could have saved the necessary money during his 90 day probationary period. The court held that the employee had advanced notice of the need to pay the fees and dues, but he decided instead to violate the rule by not paying to join union. Because his inability to pay the fees was not justification for his violation of the rule, the employee was not eligible for unemployment benefits.

This case provides a good summary of the rules associated with willful misconduct under the Pennsylvania Unemployment Compensation Law in conjunction with union membership issues. The case also provides some positive news for employers who may find themselves between a rock and a hard place when forced to discharge employees who fail to pay their union fees and dues.

EFCA Resurrected: Pennsylvania Senator Specter switches Political Parties

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

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

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

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

Arbitration of Discrimination Claims upheld by U.S. Supreme Court

The United States Supreme Court upheld a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. Accordingly, there is no legal basis for the Court to strike down an arbitration clause in a collective bargaining agreement, which was freely negotiated by a union and company, and which clearly and unmistakably requires employees to arbitrate the age-discrimination claims. However, the Court declined to rule on specific factual issued related to whether the waiver of discrimination claims under the contract by employees' in this case was clear and unmistakable. It also would not rule on whether the contract waived substantive rights protected by federal law which could not be vindicated in an arbitration. These issues were not properly before the Court.

The decision in 14 Penn Plaza LLC v. Pyett has important implications for unionized employers who face employment discrimination charges and lawsuits. These claims may be forced into the arbitration forum and out of court depending on the language in the contract. The scope of the arbitration clause including any limitations will be an important focus of future litigation.

Union Leader Predicts EFCA passage by August 2009

Andy Stern, President of the Service Employees International Union (SEIU), was recently interviewed by USA Today where he predicted the passage of the Employee Free Choice Act (EFCA) by August. 

Unions have substantial political clout and this prediction should be respected. According to Department of Labor filings, the SEIU has almost 1.7 million members and spent $32.9 million on political activities and lobbying in 2007. The SEIU's 2008 report will likely show an increase in its political spending on the Presidential Election. Mr. Stern has also expressed his sentiments on organized labor's role in the election and its expectations in a Wall Street Journal Interview as follows:

"We just won an election. It's no secret." By "we," Andy Stern means "American workers." He also means Big Labor. Speaking on behalf of the fastest growing trade group in America, the Service Employees International Union -- and as one of labor's most powerful figures today -- Mr. Stern sets this simple bar for the Obama presidency: "I expect nothing less than what he said he was going to do, and we should hold him accountable."

Labor has its sights on EFCA and this pending legislation has enormous potential consequences for employers. Currently, employers cannot make significant workplace policy or other changes once a union files a petition for election. Under EFCA, there may not be an election, only a card check.  Employers may not be aware of organizing efforts or have insufficient time to react. Employers should be putting into place union avoidance programs before EFCA becomes law. Developing an action plan should include the following items:

  • Assessing union eligibility of working supervisors under RESPECT Act.
  • Educating supervisors on authorization cards and the Nuts and Bolts of EFCA.
  • Adopting union-free policies on solicitation, bulletin boards, and use of e-mail.
  • Initiating engagement surveys.

More information is contained in our prior posts as follows:

Nuts and Bolts of the Employee Free Choice Act (EFCA) and RESPECT

Bosses do not Deserve RESPECT

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

Employee Engagement Surveys may be Critical to Combating Union Organizing Efforts

NOW is the Time for Employers to Gear up for the Employee Free Choice Act (Unions Are)

New Secretary of Labor, Hilda Solis

The Associated Press reports that "California Rep. Hilda Solis won confirmation Tuesday as President Barack Obama's labor secretary, giving the agency a decidedly pro-worker tilt after years of business-friendly leadership under the Bush administration…. The 80-17 vote ended more than a month of delays prompted by GOP concerns over Democrat Solis' work for a pro-union organization, and later, revelations about her husband's unpaid taxes."

Ms. Solis is a union proponent as described by John Phillips of The Word on Employment Law in his post Hilda Solis, Secretary of Labor Nominee — Say, “Union Yes”.  At her confirmation hearing, Secretary Solis avoided being drawn into a fight over matters such as the Employee Free Choice Act a/k/a the 'card check' bill, which she co-sponsored in the House. She received campaign contributions from several unions in her 2006 bid for Congress.  The new Secretary of Labor's Biography appears on the Department of Labor website.

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 (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.

Employer's Strategic Planning for an Obama Administration

President-Elect Obama told his hometown crowd that "Change has come to America." Through his election speeches, website and co-sponsorship of Senate Bills there is a road map of what changes will likely be coming to the American workplace.

Employers would be well served by examining the impact of likely legislation on their business and planning accordingly. The most significant changes will likely come from the Employee Free Choice Act  and RESPECT ACT which will reshape union organizing. The building trades, healthcare, and manufacturing will be the first to feel the effects, but so will business that were not traditionally union targets like financial services.  The balance of Senator Obama's legislative agenda involves expanding existing areas of employment protection through the Paycheck Fairness Act, Ledbetter Fair Pay Act, Employment Non-Discrimination Act.

Prior posts have summarized the content of these bills and their impact on the workplace. In the coming weeks, we will provide more extensive guidance on planning to meet the changes posed by these and other legislative initiatives.

Related Posts:
Employer's Guide to the Election
Obama Victory may give rise to Unprecedented Unionization of the American Workplace

Bosses do not Deserve RESPECT

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.


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.