NLRB and DOL Attempt One-two Punch on Employers, Employer Comments on Proposed Changes Encouraged

As reported previously in Hot Topics, the National Labor Relations Board (NLRB) and U.S. Department of Labor (DOL) have proposed new rules that significantly shorten union election deadlines and expand reporting requirements for companies who use third parties to fight union organizing. The proposed rules overturn 50 years of legal precedent and are intended to limit the right of employers to communicate vital information to employees prior to a union representation election. This alert provides further detail on the huge impact that these changes will have on employers and their ability to communicate with employees about their rights and the effects of unionization.

Amendments to Allow Representation Elections within Ten Days after Petition is Filed

The NLRB published a Notice of Proposed Rulemaking that allows for expedited representation-case procedures and “eliminate(s) unnecessary litigation” concerning election-related issues. If adopted, the proposed rules would significantly alter the way representation cases are administratively handled, as well as how an employer can respond to unionization efforts following the filing of an election petition.

A fact sheet released by the NLRB, reports that the proposed amendments would:
  • Allow for electronic filing of election petitions and other documents.
  • Ensure that employees, employers, and unions receive and exchange timely information they need to understand and participate in the representation case process.
  • Standardize timeframes for parties to resolve or litigate issues before and after elections.
  • Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
  • Defer litigation of most voter eligibility issues until after the election.
  • Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
  • Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
  • Make Board review of post-election decisions discretionary rather than mandatory.
If adopted, these far-reaching proposed amendments could profoundly impair an employer’s ability to discuss the impacts of unionization and collective bargaining with workers, and to address employee concerns, prior to an election.

Opposition to the proposed changes has been swift and strong.  Public hearings were held on July 18 and 19 in Washington, D.C., drawing an impressive list of speakers, including numerous former Board members, prominent labor attorneys, union officials, and employer representatives. In a strongly worded dissent to the proposed changes, NLRB Member Brian Hayes commented, “In truth, the ‘problem’ which my colleagues seek to address through these rule revisions is not that the representation election process generally takes too long. It is that unions are not winning more elections.” According to Member Hayes, “by administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought-after ‘quickie election’ option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake; the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”

Public comments on the proposed changes are to be submitted by August 22, 2011, either electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570.  Any employer who undergoes a union organizing attempt will potentially be affected by the proposed rule.  These changes are similar to the shortened election period that was proposed in the failed Employee Free Choice Act.

Proposed Rule to Change Reporting of Advice about Union Organizing

The DOL’s proposed changes to the law would require employers and consultants to report any agreements that, directly or indirectly, are intended to “persuade employees” with regard to their collective bargaining rights. The proposed changes drastically broaden the scope of reportable activities by substantially narrowing the interpretation of the “advice exemption” in Section 203(c) of the LMRDA. The proposed rule would severely narrow the exception to those reporting requirements by redefining the term “advice” given to employers.

The LMRDA requires employers and their labor relations consultants or attorneys to file reports with the DOL regarding “persuader” activities.  As the regulations stand today, the “advice” exception limits these reportable “persuader activities” to situations where a labor consultant or attorney, directly speaks to employees in an effort to persuade them to reject union representation.  At present, any written material prepared by a lawyer or labor consultant is not reportable so long as the purpose of the writing is to advise the employer and not to directly persuade employees.

Under the proposed changes, the following activities by either a lawyer or labor consultant would now be reportable:

  • Drafting, revising, or providing written materials for presentation, dissemination, or distribution to employees
  • Drafting, revising, or providing a speech for presentation to employees
  • Drafting, revising, or providing audiovisual or multi-media presentations for presentation, dissemination, or distribution to employees
  • Drafting, revising, or providing website content for employees
  • Developing or administering employee attitude surveys concerning union awareness, sympathy, or proneness
  • Training supervisors or employer representatives to conduct individual or group employee meetings
  • Coordinating or directing the activities of supervisors or employer representatives
  • Developing personnel policies or practices
  • Conducting a seminar for supervisors or employer representatives
  • Where persuader activity is undertaken, the new regulations will require consultants or law firms to file a form LM-20 with the DOL, identifying the services rendered and the employees affected.  A consultant or law firm would also have to file a form LM-21 within 90 days of the close of its fiscal year, disclosing its fees for the year for all labor relations advice, regardless of the purpose of the advice, as well as salaries derived from those fees. A company using a persuader would have to file form LM-10 within 90 days of the close of its fiscal year showing how much the company paid for persuader services. Failure to comply with the filing requirements of forms LM-10, 20 and 21 results in criminal sanctions.

Public comments on the proposed changes are to be submitted by August 22, 2011.

Contact the MSEC Labor Relations Department with any questions about the impact of these rules on your organization.