Labor Agencies Double-Team Business Community with Onerous Rules
Published Date: June 21, 2011
The National Labor Relations Board (NLRB) and U.S. Department of Labor (DOL) have proposed new rules that shorten union election deadlines and expand reporting requirements. The proposed rules are designed to limit employer free speech with employees prior to a union representation election. Below are the key points regarding both rules.
Board Proposes Amendments to Representation Election Procedures
The NLRB announced in a press release on June 21 that it will publish a proposed rule in the June 22nd issue of the Federal Register, which will significantly revise the process for union representation elections, making it easier for unions to win elections and more difficult for employers to communicate with employees prior to the vote. The Board's purported reasons for revising the election procedures were to increase efficiency, speed and accuracy in recording results, to simplify election procedures, to remove redundant procedures, to increase transparency and uniformity across regions, and to provide employees and employers with clearer guidance concerning the representation case procedure. According to an NLRB fact sheet, "The proposed amendments are designed to fix flaws in the Board's current procedures that build in unnecessary delays, allow wasteful litigation, and fail to take advantage of modern communication technologies."
Among the proposed changes are:
Whereas currently case documents (including election petitions) could not be filed or transmitted electronically, the proposed amendments would permit parties to file electronically.
Under the proposed amendments, parties would receive, along with a copy of the petition, a description of NLRB representation case procedures, with rights and obligations, as well as a statement of position form to help parties identify the issues that could be raised at the pre-election hearing.
The regional director would set a pre-election hearing to begin seven days after a hearing notice is served (absent special circumstances) and a post-election hearing 14 days after the tally of ballots (or as soon thereafter as practicable.) Currently, parties could not predict when a pre- or post-election hearing would be held because practices varied by region.
Under the proposed amendments, the non-petitioning party would produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing. Currently, a list of voters is not provided until after an election has been directed, making it difficult to identify and resolve eligibility issues at the hearing and before the election. Additionally, the final voter list available to all parties contains only names and home addresses. However, the proposed amendments would make phone numbers and email addresses available on the final voter list.
Currently, representation case procedures are described in three different parts of the regulations. Under the proposed amendments, they would be consolidated into a single part of the regulations.
Member Hayes' Dissent
NLRB Member Brian Hayes wrote a strongly-worded dissent to the proposed amendments. Member 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, "Thus, 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."
The NLRB invites comments on the proposed amendments within 60 days. Comments may be submitted electronically at http://www.regulations.gov/ or via mail. The Board also intends to issue a notice of public hearing in Washington, D.C. on July 18-19 at which interested persons can share their views on the proposed amendments.
On the heels of the NLRB's proposal, the DOL's Office of Labor-Management Standards, on June 21, issued proposed revisions to the Form LM-10 Employer Report and to the Form LM-20 Agreements and Activities Report. These reports, which are required under section 203 of the Labor-Management Reporting and Disclosure Act of 1959, cover agreements or arrangements between employers and labor relations consultants whereby the consultant undertakes activities to persuade employees concerning their rights to organize and bargain collectively.
The DOL proposes to change almost 50 years of consistent application of persuader regulation and revise its interpretation of the "advice" exemption to such reporting, by limiting the definition of what activities constitute "advice" under the exemption, and thus expanding those circumstances under which reporting is required of employer-consultant persuader agreements.
The list of activities which would trigger reporting is far beyond what most people thought of as "persuader activity" where outside third parties communicate directly with employees concerning union organizing and collective bargaining. Under the DOL's new interpretation, employers and consultants would be required to report such activities as drafting or revising written materials, drafting or revising speeches, drafting or revising audio-visual materials or websites, supervisory training, coordinating the activities of supervisors, developing personnel policies or practices, and even conducting seminars for supervisors or employer representatives, so long as the materials or training were intended to directly or indirectly reach employees and persuade them as to concerted activity.
If a consultant or law firm engages in newly-defined persuader activities, then the new regulations would require the consultant or law firm to file a form LM-20 with the DOL, identifying the services rendered and the employees affected, among other information. The LM-20 form would have to be filed within 30 days from entering into the agreement to provide the persuader activities. 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. A consultant or law firm that filed a form LM-20 would 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.
Failure to comply with the filing requirements of forms LM-10, 20 and 21 results in criminal sanctions.
Comments are due within 60 days from the publication of the proposed rule.
Significance of the New Rules
According to Harold P. Coxson, Jr., a shareholder in Ogletree Deakins' Washington, D.C. office and a principal with Ogletree Governmental Affairs, Inc.: "The combination of the NLRB's representation case rules and the Labor Department's new 'persuader activity' regulations have one common objective: to limit employer free speech with employees prior to a union representation election. The NLRB rules will provide for 'quickie' union representation elections and the Labor Department persuader activity rule is an effort to intimidate employers – especially smaller employers – from seeking legal advice during an organizing campaign."
Coxson continued, "the practical combined effect of these rules goes far beyond the Employee Free Choice Act, the 1978 Labor Law Reform Bill, or anything else organized labor could have wished for in Congress."
Coxson advises employers to file public comments during the overlapping 60-day comment periods, and to participate in the public hearing on the NLRB rules in July. Next, he advises employers to consider congressional action and possibly litigation.
Not Your Father's NLRB
These new proposed rules and the Obama NLRB will be discussed in further detail at this year's Not Your Father's NLRB seminar, which will be held on October 27 and 28 at the InterContinental New Orleans. Attendees will receive information from Washington “insiders” and experienced practitioners about the latest NLRB initiatives, decisions and directions. To attend, click here or call 866-964-6303.
Should you have any questions about these proposed rules, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via email at firstname.lastname@example.org.