New Labor Pains for Employers: NLRB and DOL Each Deliver Union-Friendly Proposals

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July 29, 2011

Recently, the National Labor Relations Board (“NLRB”) and the Department of Labor (“DOL”) separately proposed new rules aimed at making unionization easier – ignoring the old adage, “if it ain’t broke, don’t fix it.” As explained below, the NLRB proposed a new set of representation pre-election procedures, popularly characterized as the “quickie election” rules, while the DOL proposes new rules that, if implemented, are certain to “chill” employers’ use of important educational tools used to resist union-organizing efforts.
NLRB’s Quickie Election Rules
In the aftermath of the failure to secure the passage of the so-called Employee Free Choice Act, the NLRB, by way of “administrative fiat,” has proposed new operating procedures that, if implemented, will make successful union organizing more likely. Specifically, under the NLRB’s proposed “quickie election” rules – which the NLRB characterizes as an effort to “streamline” current procedures (the NLRB’s euphemism for making the election process speedier) – a union representation election could, according to NLRB member Brian Hayes, be held as early as ten (10) to twenty-one (21) days after an election petition is filed (if the union and employer are unable to reach an election agreement). Presently, representation elections typically occur between forty (40) to fifty (50) days after an election petition is filed or election agreement is approved (the NLRB’s goal is to conduct elections within forty-two (42) days after a petition is filed). Thus, the proposed rule dramatically hamstrings employers in terms of conducting effective union-avoidance campaigns.
Also, under the NLRB’s proposed “quickie election” rules, employers, within two (2) days after approval of an election agreement or direction of election (as opposed to seven (7) days under current procedures), must provide to the NLRB lists identifying the names, home addresses, available telephone numbers and email addresses, work locations, shifts and job classifications of all eligible employee voters. When possible, the lists must also be filed electronically (via email) with the Regional Director of the NLRB and the pertinent union. Under current rules, these so-called “Excelsior” lists must only identify employee names and addresses. Thus, the proposed rule creates an increasingly intrusive mechanism for unions to successfully communicate with eligible employee voters.
DOL’s Proposed Gag-Order Rule
Currently, many employers faced with the prospect of a unionized workplace turn to experienced and skilled third-party consultants and labor attorneys for guidance concerning union avoidance strategies. If employers utilize such third-party consultants or attorneys to directly educate employees about the negative aspects of union representation, these consultants and advisors are considered “labor persuaders” pursuant to the Labor-Management Reporting and Disclosure Act. Under current law, employers must report all agreements or financial arrangements with “labor persuaders” to the DOL (Form LM-10). Consultants and advisors must also report their “persuader” status, but not in connection with activities that constitute “advice” to employers about union activities (Form LM-20).
The DOL, not wanting to be outdone by the NLRB, proposed a new employer-unfriendly rule designed to make unionization easier, by narrowing the so-called “advice” exception to labor persuader reporting requirements (which, in turn, broadens the scope of what types of “persuader activities” must be reported by employers and labor persuaders). Currently, in most cases, third-party consultants and labor attorneys who do not have direct contact with employees and who provide advice to employers (and supervisors) or materials for use in persuading employees, which the employer has a right to accept or reject, are insulated from “persuader” reporting obligations. The DOL believes the so-called “advice” exception has resulted in the under reporting of “persuader activities,” and merits a shift in policy. Specifically, the DOL proposes that many activities that are not currently reportable will now trigger public reporting obligations to the DOL, including drafting or proposing employer policies aimed at protecting a union-free environment; educating supervisors about how to address employees during union organizing efforts; and providing employers with materials for distribution to employees. Not surprisingly, if the proposed, so-called gag-order rule is approved, it will create a considerable disincentive for employers to use outside consultants and advisors in connection with union-avoidance strategies as such employers will not want to publicly disclose the substance of otherwise private arrangements.
The above proposed NLRB and DOL rules will not become final, if at all, until the completion of separate mandatory public comment periods. In light of these game changing, proposed rule changes, employers are encouraged to take appropriate steps to educate supervisors and communicate with employees about the benefits of non-union status. The attorneys within Ruder Ware’s Employment, Benefits and Labor Relations Group will closely monitor the situation in the coming weeks. If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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