Pennsylvania Employment Lawyer & Attorney : Russell Krafft & Gruber Law Firm : Lancaster, York, Harrisburg

The Bureau of Labor Statistics recently published statistics on Union Membership for 2007 which note a slight increase in the percentage of the national workforce which is unionized. Union workers now account for 12.1% of all wage earners down from 20.1% in 1983. The BLS report notes some interesting trends on national data:

• Workers in the public section had a union membership rate nearly five times that of private sector employees.
• Education, training, and library occupations had the highest unionization rate among all occupations, at 37.2 percent, followed closely by protective service occupations at 35.2 percent.
• Among demographic groups, the union membership rate was highest for black men and lowest for Hispanic women.
• Wage and salary workers ages 45 to 54 (15.7 percent) and ages 55 to 64 (16.1 percent) were more likely to be union members than were workers ages 16 to 24 (4.8 percent).

Overall union membership as a percentage of the Pennsylvania workforce increased from 13.6% to 14.7%. The regional trends in Pennsylvania are nicely summarized by Jim T. Ryan of the Central Penn Business Journal in his posting “Unions see more members”.   I agree with Jim’s conclusion that growth in union membership is largely attributable to hiring by unionized companies and not by union organizing of new companies. Union organizing efforts could get a real shot in the arm if the Employee Free Choice Act becomes law. I have previously blogged on the impact of Union Card Check Legislation.

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A very interesting article by Matthew Teague entitled  The Last Union Town appears in Philadelphia Magazine. It chronicles the dominance of labor unions in Philadelphia’s political, social and economic life by examining the fight over non-union workers bidding on work for the Convention Center Expansion. The article is a lightning rod for disagreement as one can see by the venom in the User Comments. There is also a great deal of interesting blog commentary on Philadelphia’s Union dominance including the following:

The Union-Free Employer

• Philadelphia: The Last Union Town
• Are Labor Unions the Reason Pennsylvania is not as Productive as it Used to Be?:

PAWaterCooler

• Unions are Lacking in Leadership!

Blonde Sagacity

• Philly Unions: Now I Understand Why so Many of You Don’t…

PhillyBlog.Com

• Non-Union workers at Conv. Center?!?

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            There has always been tension between the arbitration process and the judicial process, particularly when it comes to judicial review of an arbitrator's decision. In its decision in Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA, the Pennsylvania Supreme Court reaffirmed Pennsylvania's policy favoring arbitration and the finality of an arbitrators decision. The Court expressly reaffirmed the "essence test" as the proper standard to be employed by a court; adopted a public policy exception to the essence test; and rejected the prior "core functions exception".

            If my description is making your head spin, welcome to the world of grievance arbitration. Although the case is set in the context of a grievance arbitration for public employees, it has important instructional value for all unionized employers as well as those employers who are tempted to adopt contractual arbitration agreements to avoid the expense of litigation. The possibility of getting a "crazy" decision reversed in court is remote.

            The facts of the Westmoreland Intermediate Unit case demonstrate how an arbitrator's decision can have significant implications for an employer's workforce leaving an employer almost no option when it comes to appealing the award. The case involved a public school's decision to terminate a classroom assistant for a work related substance abuse episode. The employee had twenty-three years experience and no prior disciplinary action. The classroom assistant was under the treatment of a physician who had prescribed several medications. She made the decision to supplement her physician prescribed medications with another prescription medication a friend had given her. The misuse of the friend's prescription medication is a crime for which the classroom assistant was later prosecuted.

            On the day she misused the friend's prescription medication, she had an adverse reaction at work resulting in her being found unresponsive in a restroom while she was to be attending to her classroom duties. Emergency personnel were summoned to assist her and the entire school was placed under a "code blue" which is essentially a lock down.

            The school terminated the classroom assistant for "immorality" which is one of several statutorily enumerated causes for termination of a school district's professional employees. The union grieved the termination and an arbitrator found that the employee's behavior was "foolish" and "irresponsible" but did not rise to the level of "immorality". The arbitrator determined just cause did not exist under the collective bargaining agreement to terminate the employee. The school appealed the decision into court where the first level of appellate court reversed the decision of the arbitrator finding that the unique nature of the school's function (educating children) allowed for the application of the "core functions" exception to determine whether the arbitrator's award was rationally derived from the collective bargaining agreement.

            The Pennsylvania Supreme Court reversed the ruling holding that the "essence test" is the proper standard to be employed by a court when reviewing a grievance or arbitration award and adopting a public policy exception to that test while rejecting the "core functions" exception. Along the way, the court made the following important observations about a court's judicial review of an arbitration award:

• “The General Assembly requires that the decision of the arbitrator shall be final and binding upon the parties. Therefore, final and binding arbitration is not only highly valued in labor relations for its speed, inexpensiveness and efficiency, it is required under the law.”
• “Broad judicial review of an arbitrator's award . . . would undercut these attributes of arbitration, and thus, thwart the Legislature's intentions regarding resolution of labor disputes. Specifically, judicial review that would allow the regular vacating of arbitration awards would not only encourage extended litigation through court review of arbitration awards, but would add time and expense to the process and would take the resolution of disputes from a person chosen by the parties and give it to a court to decide.”
• “An arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may, of course, look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement."
• “The arbitrator's award will be upheld if the arbitrator's interpretation can rationally be derived from the collective bargaining agreement. That is to say, a court will only vacate an arbitrator's award where the award indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement.”
• “The essence test does not permit an appellate court to intrude into the domain of an arbitrator and determine whether the award is ‘manifestly unreasonable.’”
• The Pennsylvania Supreme Court adopts the principles established in federal arbitration that is "courts should not enforce an arbitration award that contravenes public policy." This exception is grounded in the general rule that a court will not enforce a contract which is unlawful or in violation of public policy.
• “The public policy must be well defined and documented and is to be ascertained by reference to the laws and legal precedents and not from general considerations of proposed public interests.”

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One December 16, 2007, the Board issued its much anticipated decision in Guard Publishing Company d/b/a Register Guard and Eugene Newspaper Guild, CWA Local 37194 holding an employer did not violate section 7 by maintaining a policy that prohibited employees from using the employer’s e-mail system of any “non-job-related solicitations.”

The NLRB’s 3-2 decision also announced and applied a new standard for determining whether an employer has violated the act by discriminatorily enforcing its policies to disadvantage protected union-related activity. The new standard distinguishes between personal nonwork-related messages and “group” or “organizational” messages such as a union. Therefore, “discrimination under the Act means drawing distinctions along Section 7 lines.”

In Guard Publishing, the employer had a written policy prohibiting e-mail use for non-work-related solicitations. However, the employer allowed several such communications like jokes, party invitations, request for services such as dog walking, etc, but it never allowed e-mail use for solicitation by or on behalf of outside organizations other than the United Way. The employer issued two warnings to an employee who sent three union-related e-mails, which lead to the charge of discriminatory enforcement of the policy.

The Board majority held that two of the three e-mail communications were direct solicitations to join the union and violated the policy; however, the third message was not a solicitation, merely a clarification of events surrounding a union event. Therefore, under the newly announced standard, the employer did not discriminate along section 7 lines when it disciplined the employee for the two union solicitation e-mails since it had never allowed employees to use its e-mail system to solicit on behalf of any other outside group. However, the employer’s enforcement of the policy with respect to the third e-mail which was not a solicitation was unlawful.

The new standard should have an important impact on employer’s e-mail policies and charges related to discriminatory enforcement of employer’s policies.

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The National Labor Relations Act (NLRA) is notoriously complex and there are numerous exceptions to almost every rule.   As an HR Generalist in a nonunion company, the following are five areas where questions frequently arise and you may be called upon to know your way around the issue on the spot:

1)    Section 7 Rights:  Nonunion employees may be protected from discipline or discharge by the NLRA. Section 7 of the NLRA gives all employees (union and nonunion) the right to engage in protected concerted activities which are usually group activities (two or more employees acting together) attempting to improve working conditions, such as wages and benefits. Employers may not interfere with, restrain, or coerce employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective-bargaining purposes, or engaging in protected concerted activities, or refraining from any such activity. An employee is engaging in section 7 activity when he or she complains about wages, hours or working conditions on behalf of himself and other employees, and may not be disciplined or discharged for these actions. Likewise, nonunion employees who engage in a work stoppage (strike) as a form of protest may not be fired for doing so. However, partial strikes, sit ins and work slow downs are generally not protected.

2)    Employer’s Private Property Rights: Unions and non-employee union organizers may not enter onto an employer’s private property to picket or leaflet. Employees may distribute literature and solicit on an employers private property during non-work time and in non-work areas.

3)    Handbook Nonsolicitation Clauses: An employer may adopt a policy prohibiting solicitation and distribution of literature during working time and in work areas so long as the rule is (a) unambiguous with regard to the definitions of work time and work areas, (b) promulgated in advance of organizing activities, (c) not applied for the first time to known union adherent, and (d) uniformly applied to union and nonunion solicitations. The NLRB is currently considering the scope of the application of Nonsolicitation policies to an employer’s e-mail system.

4)    TIPS (or SPIT) Training: Supervisors can commit NLRA violations by their comments and reactions to employees during an organizing campaign. Almost every lawyer and consultant will use the acronym T-I-P-S to train supervisors about what they can and can’t do in during an organizing campaign:

T stands for threaten. Supervisors cannot threaten individuals participating in union activities with reprisals such as reducing their benefits, termination of employment, or any other kind of retaliation. Companies also cannot commit the threatened acts.

I stands for interrogate. Supervisors cannot question any employees about whether they signed a union card, whether they support the union effort, how they would vote in a union election, how they feel about union representation, or how others feel about the same subjects.

P stands for promise. Supervisors cannot promise wage or benefit increases, promotions, or future benefits to employees for opposing the union. You also cannot grant any such benefits.

S stands for spy. Supervisors cannot watch union activities in order to determine who is attending meetings, signing cards, or supporting the union. This applies on- and off-work time and on- and off-work premises

5)    Card Check Recognition:   Pending legislation called the Employee Free Choice Act would require the NLRB to certify a union when a majority of workers sign authorization cards that designate the union as their bargaining representative.  The card check process would eliminate the secret ballot election traditionally used to determine union representation.  Under the current law, union organization of a workforce occurs after a showing of interest to the NLRB by the presentation of authorization cards together with a recognition petition identifying what the union believes to be an appropriate unit for organizing.  The employer may contest the appropriateness of the unit by demanding a hearing before an NLRB representative.  After the unit is certified as appropriate by the NLRB, a secret ballot election is held (generally within about 30-45 days after the petition was filed).  If the union receives a majority of the ballots cast by employees in the unit, it wins the right to represent the employees in an appropriate bargaining unit. Eliminating the secret ballot has a tremendous impact on an employer's ability to combat organizing attempts.    The downside of card checks is the subject of another post in connection with the Employee Free Choice Act.

*Not meant to be an exhaustive list.

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Salting refers to paid or unpaid union organizers who apply for jobs for reasons of either getting a job and advocating for union affiliation from inside the company, or setting an unwitting employer up for an unfair labor practice. It is unlawful for an employer to refuse to hire an applicant merely because the applicant plans on expressing pro-union views. Typically, a salt will apply for a job making it known on the application, cover letter, or by other communication that union organizing is his or her intention. The reaction of many nonunion employers is to turn down pro-union applicants in violation of the NLRA.

In Toering Electric Company, the NLRB modified its rules for analyzing unfair labor practice charges arising when an employer refuses to hire or to consider hiring an applicant because of union considerations. The Board will now require the General Counsel [which prosecutes ULP charges] to prove that an applicant was "genuinely interested in seeking to establish an employment relationship with the employer." The rationale for the Board’s decision was expressed as follows:

[T]he Board's experience has shown that in some hiring discrimination cases, particularly those involving 'salting' campaigns, unions submitted batched applications on behalf of individuals who were neither aware of the applications nor interested in employment opportunities with the employer. In other cases, individuals submitted applications but were not interested in obtaining employment with the employer. Their applications, sometimes accompanied by conduct plainly inconsistent with intent to seek employment, were submitted solely to create a basis for unfair labor practice charges and thereby to inflict substantial litigation costs on the targeted employer.

Salting is only one of the union hiring tactics that target small nonunion employers that may be less prepared to respond. Other tactics include the following:

• A union member gets a job with a company while concealing his or her union membership. After being hired, he or she openly attempts to organize the work force, usually violating the company’s rules until he or she gets terminated. The union then files an unfair labor practice charge alleging that the company discriminated against the salt because of his or her union activity.
•  Large groups of union members applying for positions at a workplace disrupting operations and sometimes video taping the response of company managers.
• Corporate Campaigns target employers with adverse publicity and filing complaints with federal, state and local agencies.

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The United States Constitution is often invoked as a source of workplace rights, particularly as it relates to freedom of speech, freedom from unreasonable search and seizure, and even the right to bear arms. A quick civics lesson reveals that the Bill of Rights creates limits on the government’s actions to curb constitutional rights but does not typically restrain private employers from trampling constitutionally guaranteed freedoms.

Generally, employees of private sector employers have no constitutional “free speech” rights in the workplace, so take pause before you wrap yourself in the flag and speak your mind. In both Geary v. U.S. Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) and Wagner v. General Elec. Co., 760 F.Supp. 1146 (E.D. Pa. 1991), Pennsylvania courts rejected wrongful discharge claims based on First Amendment protects asserted by employees who were terminated for criticisms of their employers.

Gary Huber of the News Journal has an article on Freedom of speech? ... better ask your boss which explores the circumstances of  firings for employees expressing their opinions. Employee comments need not be made at work. Employees have been fired for blogging and posting on MySpace.   Some sites offer advice on how to avoid termination for blogging.

An employer’s power to terminate an employee for expressions of opinion is not absolute. Notable exceptions exist for “union activity”, anti-retaliation provisions of discrimination laws, and Sarbanes-Oxley Act compliance. An excellent discussion of the law in these areas appears in a New York Law Journal article by Jeffery S. Klein and Nicholas J. Pappas entitled When Private Sector Employer Fires Worker for Blogging.

Many employers have chosen to adopt policies on employee communications for a whole range of purposes. Policies can be helpful in defining an employee’s actions in the following areas:

• Authority to comment to news media on official matters
• Authority to communicate with or about customers and vendors
• Use of work time
• Use of employer’s computer and other resources
• Disclosure of confidential or proprietary information
• Prohibition on content of communication that is disloyal, discriminatory, inflammatory, threatening, or disparaging of the company, its employees, customers, products, etc.

Since many corporations have blogs, they have also developed blogging policies and guidelines. IBM’s Blogging Policy is an excellent example of one employer’s approach.

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The Lancaster New Era has an interesting article entitled "Worker strikes down union at Lancaster parts maker" which describes a twenty-three year old employee's motivations to decertify the Steelworker's union which had represented employees at the plant for 37 years. By a vote of 11-6, the employees voted to become nonunion for reasons which may be typical for many employees (particularly for Generation Yers):

The key issue in the 2005 strike was the Steelworkers' desire to keep Mac-It a "closed shop," meaning hourly workers who were covered by the union contract had to be union members.

Management wanted to delete the "closed shop" provision, contending it caused some workers to leave Mac-It and made it hard to recruit new ones.

"We wanted people to have a choice," Stillman said. "This is America. People should have a choice."

Walton concurred with management. He wasn't happy that he had to join the Steelworkers.

He wasn't happy that 1.3 percent of his gross pay, including overtime and bonuses, was deducted for union dues.

And he wasn't happy that the union contract, not his productivity, set his pay, and that the contract, not his willingness to take initiative, set what tasks he could perform.

"How to Guides" for decertification appear on several websites, like the National Right to Work Foundation. Union decertifying is governed by the National Labor Relations Act and begins with the filing of a decertification petition supported by 30 percent of the employees in the unit covered by the union. The NRLB imposes time frames on filing a decertification petition that generally coincide with contract expiration. The process of certifying and decertifying a union are almost identical, except for the role that an employer is permitted to take in the decertification process.

When approached by an employee who asks "how to get ride of the union" employers must contain their glee and realize their role is limited as follows:

• An employer may not initiate, instigate, solicit, encourage or actively assist in the filing of a decertification petition. Promoting decertification is impermissible because these activities interfere with employees' free choice.
• An Employer may provide "Ministerial Assistance." If an employee asks a management representative how to remove the union, the representative may lawfully inform the employee of the decertification process.
• Once a petition has been filed, an employer may actively campaign to decertify the union. An employer may give employees arguments for voting against the union; communicate its views in writing, including handouts, posters and letters; and otherwise do anything it is permitted to do in a recognition campaign. 

Employers must tread carefully in the decertification process so as not to invalidate the efforts of their employees.   A union may challenge a decertification vote on the basis of employer interference. The decertification petition may trigger other employer rights associated with the withdraw of recognition of the union as the bargaining agent for the unit. These are complex legal issues that depend on careful evaluation of the facts and circumstances.

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Anyone who has ever driven by a business when its unionized employees are on strike has undoubtedly observed the "picket line". The image or workers carrying placards with anti-company slogans walking back and forth in front of a gate at their workplace is associated with every labor dispute. But what is the purpose of the picket line?  Is it antiquated or effective?

One of the simplest summaries of "picket line" appears on Howstuffworks which states that "[t]he purpose of picketing is to draw public attention (and sympathy) to their cause, inform the public of the goals and the reasons behind the strike and discourage anyone from violating the strike order and going to work. Anyone who does this literally has to cross the picket lines, and they usually are called scabs."   As you might expect, the National Labor Relations Board (NLRB) has a slightly more complex approach to picketing which can occur in many reasons other than a strike.

Picketing has strong symbolism. Political candidates line up, literally, to garner union support by marching in picket lines. The picket line establishes a boundary between the business and the outside world. It attracts attention (better than a giant inflatable rat). It disseminates information (sometimes).

There is little or no empirical evidence that I could find on the effectiveness of picketing as an economic weapon. Anecdotally, picketing is intimidating to customers and employee's who may be inclined to cross the picket line. It generates media attention which may cast the company in an unfavorable light. The picket line is disruptive to business when sympathy strikers won’t cross the picket line to enter the business. It is a boon to lawyers, security companies and videographers who monitor the picket line shenanigans.

Unions obviously think picketing is important for reasons other than giving there members something to do to earn their strike benefits. As observed by the hr capitalist, unions may even be willing to pay others to walk the picket line. A typical day on the picket line is featured in an article entitled Garment strikers sticking together by Spencer Soper. In many ways, a picket line seems like a team building exercise gone bad.

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The Pennsylvania Employment Law Blog has added a new section which highlights and/or discusses legal situations which commonly confront human resource professionals. Click on the link titled "Did You Know? PA Employment Law Highlights" on the upper right side of the page. The short informational postings address Pennsylvania law's impact on specific HR activities to promote compliance, proactive risk management, and issue identification.   The postings will be made on a regular basis and archived in this special section of the blog for our reader's reference and review. 

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The U.S. House of Representatives voted 241 to 185 to pass H.R. 800 which is a bill that would change the process for unions to organize a workforce.  The bill would require the NLRB to certify a union when a majority of workers sign authorization cards that designate the union as their bargaining representative.  The card check process would eliminate the secret ballot election traditionally used to determine union representation. 

Under the current law, union organization of a workforce occurs after a showing of interest to the NLRB by the presentation of authorization cards together with a recognition petition identifying what the union believes to be an appropriate unit for organizing.  The employer may contest the appropriateness of the unit by demanding a hearing before an NLRB representative.  After the unit is certified as appropriate by the NLRB, a secret ballot election is held (generally within about 30-45 days after the petition was filed).  If the union receives a majority of the ballots cast by employees in the unit, it wins the right to represent the employees in an appropriate bargaining unit.

Eliminating the secret ballot has a tremendous impact on an employer's ability to combat organizing attempts.  The following is a partial list of problems created by the card check process:

 

 

Continue Reading...

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