A Traditional Labor Practice Approaches The Future With Confidence

Sunday, April 1, 2007 - 01:00

Editor: Would each of you tell our readers something about your professional experience?

Rogers: I have been practicing labor and employment law, on the management side, exclusively for 25 years. Prior to joining Pitney Hardin, one of the two predecessor firms to Day Pitney, I was in-house at what is now Verizon, a heavily unionized company, doing traditional labor work. In addition to representing the company in labor litigation and dealing with strikes, I worked on contract and discipline cases.

I joined Pitney Hardin about 8 years ago because of its reputation and the size of the traditional labor department, where I continue to be engaged in a traditional labor practice with an extensive employment litigation feature.

McCarthy: I serve as co-chair of the Day Pitney labor, employment and employee benefits group, which consists of some 50 attorneys and is spread across nine offices from Boston to Washington, DC. The practice has a large and diverse client base spanning nearly every industry and type of employer. Reflective of the breadth of our practice, last year alone I personally served about 120 different corporations. We typically fill our ranks from within the firm, which provides for both consistency of service and a cadre of well-trained people who grow to know our clients.

My personal work includes: assisting employers with planning and implementing business change and addressing the impact of such change on both union and non-union workforces; assisting employers with compliance with both federal and state labor regulations, particularly NLRA, OSHA and wage and hour laws; and negotiating and administering union contracts.

Goldberg: I have been engaged in practice for over 30 years, most of which has been in New York. I joined Pitney Hardin in 2002. My practice is both in the traditional labor arena as well as in employment litigation, including advice and counseling. Perhaps a third of my time is in the former area, much of it devoted to advising clients how to maintain their non-unionized status. I also handle collective bargaining negotiations, labor arbitration, strike situations, NLRB cases and the like. The firm is also involved in a considerable volume of wage and hour litigation, which, over the past five years, has seen a resurgence with collective actions under the Fair Labor Standards Act.

Editor: Speaking of predecessor firms, how have the Day Berry & Howard and Pitney Hardin practices in this area complemented each other?

McCarthy: Our respective practices have proven to be very complementary. Day Berry & Howard had less of a traditional labor practice than Pitney Hardin, but their employment litigation practice was very substantial. In coming together, each firm has reinforced the other in terms of both experience and geographical reach. We now are able to cover the entire corridor from Boston to Washington, something neither firm alone could do. And the compatibility of the people in the two groups has been exceptional.

Rogers: As a result of the merger, Ed Dempsey joined our practice in the Hartford office. He came to Day Pitney earlier this year after having been chief labor counsel at United Technologies for many years. One of the principal reasons behind his decision to join us is the size and breadth of the combined labor and employment group.

Editor: How has the decline in the percentage of unionized workers in the American workforce affected the practice?

McCarthy: The impact of the decline in the number of unions has led to an increase in our share of the remaining pie as the number of firms with union experience has also shrunk. We continue to maintain a substantial practice in the traditional labor area, which means that we are increasingly attractive to those corporations in need of help with union matters. When I joined the Pitney firm in 1980, there were about eight lawyers in the group. Just prior to the merger there were 28 at Pitney. Now, combined, we have about 50.

Goldberg: Another factor contributing to our success is the fact that, while the percentage overall is in decline, we happen to be in a region - the Northeast - where a substantial percentage of the private sector workforce continues to be unionized.

Editor: What kinds of skill sets are involved in the practice?

McCarthy: Day Pitney recruits bright lawyers, and we find that many wish to join our group. We deal with people in a practice such as this, and the problems that we address are changing all the time. It is extremely interesting work. In addition, the opportunity to try cases in the employment area is much greater than in many other areas. Young lawyers are often attracted to the practice for its "on your feet" opportunities.

So far as skill sets are concerned, the best practitioners combine good legal skills with practical business judgment. The practice is also very diverse in terms of requiring counseling, litigation, negotiation and other skills requiring a frequent change of mind-set.

Rogers: Another thing that draws associates to the group is our long-term client relationships. They see in this an opportunity for counseling and for being involved in strategic decision-making with the clients. For many of these clients, the provisions of the collective bargaining agreement are crucial to business success, and that brings our attorneys into the client's day-to-day operations to a degree seldom seen in other practice areas.

Editor: The House of Representatives recently passed a bill, H.R. 800, the Employee Free Choice Act, which amends the National Labor Relations Act. For starters, would you give us the background on this?

Rogers: To me it is an obvious attempt by the AFL-CIO to capitalize on the Democratic control of Congress to try to change the current laws in place with respect to the secret ballot, something that has been part of our legal system for 70 years. A second major change would require the company to reach an initial contract with a new union within a 90-day period or face mandatory arbitration, where a third party would impose the conditions of employment on both the company and the union.

This is very far removed from what the National Labor Relations Act was intended to accomplish. It reflects, I believe, the lack of success that the unions have had in organizing the work force, particularly younger workers, over recent decades. Many of the younger workers are reluctant to pay union dues for promised benefits that have not materialized.

McCarthy: The secret ballot has been the gold standard for this type of activity. The unions now claim that the secret ballot is not reflective of free choice because of unfair business practices and even violations of the NLRA by employers. The answer, of course, is that, assuming any substance to the claim, such things are violations of law and subject to legal action.

The decline of the unions in this country is not attributable to any defects in the NLRA, but rather to a whole host of societal events over the past 70 years. At one time unions were the only source of many protections for the workforce. However, now federal and state laws have evolved to protect workers from discrimination, from unsafe workplace conditions, from unfair compensation practices, and so on. That has served to make much of the original role of the union movement redundant.

In addition, the unions have concentrated on manufacturing and on cities and concentrated population centers supportive of manufacturing, and as our economy has become more service oriented and global, they have not adapted particularly well. At the end of the day, this particular bill seems to be an effort by the unions and their political allies to help unions rebound without having to justify their worth by eliminating the free debate that comes with elections.

Editor: In the event H.R. 800 does become law, what are the implications for employers?

McCarthy: It is important for employers to consider that this bill, or some form of it, may become law, if not now then in future years. Employers need to communicate to their workforces the virtues of a non-union workplace environment. The worst thing that can happen for everyone - employer and employee alike - is a labor contract that guarantees the business will fail. Forcing the company to shut down or move its operations offshore leaves the employees with nothing.

Editor: What do you suspect will happen with this bill?

Goldberg: My sense is that the Senate will not pass it. The President has already indicated that he will veto the bill. The odds of the bill passing in the next couple of years are relatively slim. Of course, it is anyone's guess what will happen after 2008.

Rogers: If the Democrats obtain control of the White House and at least the House, I think there is a good chance this legislation, or something very close to it, will be one of their highest priorities.

Editor: What impact do you expect H.R. 800 to have on Day Pitney's practice?

McCarthy: We are renewing our emphasis for employers to educate employees on the disadvantages of having a union and to focus on eliminating those issues that may cause employees to want a union. If the bill does become law, our practice will be engaged in more arbitration proceedings due to the provision that mandates arbitration if a recognized union cannot negotiate a first contract within 90 to 120 days.

Goldberg: If HR 800 is passed, the bill gives the union an incentive not to be flexible at the bargaining table because the inevitable result is arbitration. The implication for any practice such as ours is that this law will herald the arrival of another full employment era for labor lawyers.

Editor: Speaking of the future, what are the key issues for a labor relations and union relations practice?

Rogers: One of the key issues for a practice such as this is the ongoing ability to bring a new generation of traditional labor lawyers into the fold. In order to continue to achieve success, it is essential that we be able to pass on the collective knowledge and experience that we received from our predecessors to the next generation. To date, we have been able to do this, but it is not something that just happens. We must work at it.

McCarthy: We are familiar with this type of transition; our predecessors have been doing it since the 1930s. I believe that the unions will always be with us, and the clients of this practice are companies that are not likely to be going out of business. We plan to continue to do what we have been doing well into the future.

Goldberg: What Day Pitney offers - which few other traditional labor practices offer - is the ability to analyze and solve an issue from a variety of perspectives, traditional labor, employment, benefits and so on. We can call upon lawyers of extraordinary ability across a wide range of areas, including OSHA, immigration and restrictive covenants, as well as the knowledge of our other departments, like corporate, IP, white collar crime, environmental and others - it is this breadth of experience that permits us to approach the future with such a degree of confidence.

Please email the interviewees at mrogers@daypitney.com, pmccarthy@daypitney.com or agoldberg@daypitney.com with questions about this interview.