The Obama Administration Doubles Union's Pleasure With Latest Proposed Rules

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June 27, 2011

By: Kristofor L. Hanson

The Department of Labor and the National Labor Relations Board have announced proposed rule changes that will significantly alter union-election procedures and reporting requirements for employers and their labor consultants. These changes, in large part, are designed to implement by administrative rule many of the measures of the failed Employee Free Choice Act, which could not be pushed through Congress. Implementation of these changes will greatly enhance union efforts to organize and will place far greater requirements on employers and their labor relations consultants.

Changes to NLRB election procedures

The Board's proposed rule changes would substantially shorten the period between the filing of a petition for a union-representation election and the actual voting in the election. Presently, this period is a relatively short 38-40 days from petition to election, which bests the informal 42-day rule the Board has sought to meet. The proposed rules, while not mandating a time frame, seek to shorten that period and may reduce it to 10-20 days, as suggested Board member, Brian Hayes, who voted against the proposal. Since employers are often unaware of union organizing until the filing of the petition, the proposed rules would give employers far less time to get their message out. This is especially problematic for employers, since unions often conduct organizing operations for many months before filing the petition.

The proposed changes include many elements that negatively impact employers while easing organizing and election efforts for unions. Under the proposed rules:

• Employers would be required to give petitioning unions and the NLRB information including employee phone numbers, email addresses, work locations, shifts, and job classifications. This is in addition to the current requirement that the employer provide the names and home addresses of its workers. These changes will provide unions with better access to employees while at work.
• Pre-election hearings must be held within seven days of the filing of the petition and post-election hearings within fourteen days after the ballots are tallied.
• Employers will waive issues they wish to address at hearing if they fail to identify those issues pre-hearing. The proposed rules require the parties to file "Statements of Position," in which they identify the issues to be addressed at hearing. Failing to identify an issue would prevent an employer from raising it at hearing, presenting any evidence relating to it, cross-examining any witness on the issue, and presenting any argument on the issue.
• Employers will no longer be entitled to hearings on who is entitled to vote in the election unless more than 20% of the voting unit is called into question by the employer. If 20% or lower, voters would be challenged only at the polling place and their eligibility could be litigated only after the vote.
• Election petitions and notices, and voter lists could be sent electronically to speed up elections. NLRB regional offices could deliver notices and documents electronically rather than by mail and could directly notify employees by email when addresses are available. Currently, the NLRB and parties cannot file electronically or electronically send representation case documents, including election petitions.

Expansion of Reporting Requirements for Employers and Their Labor Relations Consultants

In another significant change, the Department of Labor announced proposed regulations that it will greatly expand cumbersome and invasive reporting requirements for employers and their labor relations consultants who act as "persuaders" during union organizing campaigns and other union activities. Presently, the rules require reporting of agreements with consultants and law firms, known as persuaders, hired to influence employees on issues of bargaining and organizing. The persuader classification, until now, has been limited to those that have direct contact with employees.

The proposed rules would expand the reporting requirements to include those consultants engaging in "persuader activity," which would include anyone that engages in "actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively." Only those who exclusively counsel employer representatives on what they may lawfully say to employees, ensure that their clients are in compliance with the law, or provide guidance on NLRB practice or precedent will be considered to have simply provided advice. Persuader activities that will trigger reporting requirements will include:

• Training supervisors or employer representatives to conduct individual or group meetings designed to persuade employees.
• Drafting, revising or providing a speech, written communications or other materials to an employer for presentation to employees.
• Coordinating or directing the activities of supervisors.
• Developing employer personnel policies or practices designed to persuade employees to reject union representation.
• Planning individual or group meetings designed to persuade employees to vote no.

If adopted, the new regulations, would most likely force affected "consultants" to choose between providing services that fall under the newly defined "persuader activities" and limiting their assistance to mere advice as that term will be defined under the proposed rules. The intent of this rule and its corresponding onerous reporting requirements is clearly to limit the pool of available resources to an employer confronting a union organizing effort.

The NLRB and the Department of Labor are Accepting Comments on these Proposals

Both the NLRB and the Department of Labor are accepting comments on the proposed changes. Lindner & Marsack, S.C., is preparing a comment to these proposed rules to be filed with the respective agencies. If you would like assistance in submitting a comment, please contact our offices. You may also comment by going to www.regulations.gov which is the Federal eRulemaking Portal. We encourage you to comment on these proposed rules and also encourage you to contact your elected representative concerning them as well.

With offices in Milwaukee Lindner & Marsack, S.C. has represented management exclusively in all facets of labor, employment, and employee benefits law since 1908. Call us at (414) 273-3910 or visit our website, www.lindner-marsack.com, to learn more about our firm and its experienced and innovative attorneys.