HR Specialist: Pennslyvania Employment Law

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by Jonathan Kane and Amy G. McAndrew, Esqs., Pepper Hamilton LLP, Philadelphia

By now, most employers have heard of the Employee Free Choice Act (EFCA), the proposed legislation that would make it dramatically easier for unions to organize workers and obtain favorable terms in the initial collective-bargaining agreement.

Under the current rules laid out by the National Labor Relations Act (NLRA), unions organize workers through the private election system with secret balloting and then bargain collectively with employers. 

No more secret ballots

With the secret ballot system, employees can decide in the privacy of a voting booth whether they want to be represented by a union. The EFCA would change that by allowing the National Labor Relations Board (NLRB) to certify a union as an employee unit’s exclusive bargaining representative after a union convinces a majority of employees to sign union authorization cards or a petition.

What’s more, the EFCA would allow the union to demand that the employer participate in mandatory arbitration for a first contract, which would allow a third party to dictate terms of the agreement and potentially create disastrous economic consequences.

The EFCA did not make it through Congress when it was last proposed in 2008, although it overwhelmingly passed the House. It did not pass in the Senate. Its chances for passage are better this year. If the EFCA makes it through Congress, President Obama has vowed to sign the bill.

What employers can do

If this prospect worries you, management’s first priority is to try to stop the legislation. If passed, the EFCA will represent the most dramatic change in labor relations since the passage of the Wagner Act in 1935. It will make it extraordinarily easy for unions to organize in both the traditional manufacturing sectors and in many other sectors of the service economy.

Is it time to panic? Of course not, but it is time to take action.

The ease with which a union could organize through a petition or card-signing campaign makes it essential to thoroughly re-evaluate company policies, procedures and practices. There are many prudent and cost-efficient steps that employers can take right now to make unionizing less attractive to employees. 

Companies being targeted for unionization should immediately take steps to ensure a healthy environment for employee relations. Start with an accurate review and assessment of policies and practices, compensation, management training, communications systems and problem-solving procedures. 

An internal, self-serving review is not only a waste of time, but can fail to identify real problems and their causes. That’s counterproductive. External reviews are much more accurate and won’t cover up blemishes.

Once you identify problems, correct them. In addition, put auditing and survey mechanisms in place to ensure your organization’s policies, practices and procedures continue to be assessed and corrected on an ongoing basis.

Early-warning systems

Cooperative or collaborative committees or groups composed of management and employees also can promote positive employee relations. But if not organized correctly, such groups or committees could violate the company-dominated union provision of Section 8(a)(2) of the NLRA.

A competent labor-relations attorney can help you institute effective cooperating committees, while avoiding the NLRA prohibitions.

Such committees are effective. Unions strongly oppose them because—if used well, continuously and legally—committees can eliminate a union’s element of surprise by serving as an excellent “early warning” system alerting the company of employee unrest.

Your attorney can help

If you have multiple locations, ask your labor attorney to review all the sites to determine which of them would be an “appropriate unit”—the site to be organized under the terms of the NLRA. It may be possible to take action to ensure that the “only appropriate unit” consists of multiple sites.

That way, even if a petition or cards are signed at one site without the employer’s knowledge, it would be extremely difficult for a union to extend that successful organizing to another site. It makes it more difficult for a union to successfully organize multiple sites from the outset. Don’t wait to undertake this type of review.

Labor groups are spending an enormous amount of money and political effort to support the proposed EFCA legislation. It is important to take prudent and cost-effective steps now to be prepared. 

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Authors: Jonathan Kane is a partner in the Philadelphia and Berwyn offices and chairman of the Labor and Employment Group for Pepper Hamilton LLP (www.pepperlaw.com), a Philadelphia-based multipractice law firm with 450 lawyers in seven states and the District of Columbia. He can be reached at (610) 640-7803 or kanej@pepperlaw.com.