NLRB and U.S. DOL Propose New NLRB Rules which will Affect all Union Representation Elections as well as Voter Reporting

NLRB and U.S. DOL Propose New NLRB Rules which will Affect all Union Representation Elections as well as Voter Reporting
On June 22, 2011, the National Labor Relations Board (“NLRB”) published proposed new rule changes in the Federal Register. If these employment rules are enacted, it will dramatically accelerate the timeframes for all union representation elections.
Additionally, the U.S. Department of Labor’s Office of Labor-Management Standards (“DOL”) published proposed rules to narrow the interpretation of the term “advice” as it pertains to the persuader reporting requirements set forth within Section 203 of the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”), just a day earlier. Together, these proposed changes create new burdens for employers who wish to communicate with employees about collective bargaining and workplace unionization. If enacted, the practical result of these proposed changes (whether intended or not) is that they will create tactical advantages for organized labor that will in turn help unions win an increased number of representation elections.
The NLRB Proposes “Quickie” Elections
Under current NLRB practice and procedure, employers typically have several weeks between the date that a petition for an election is filed and the actual date of the union representation election. Employers will often use this period to communicate with their employees and, in accordance with certain restrictions, campaign in opposition to the union. The NLRB’s proposed rules, however, seek to streamline the NLRB election process and in effect shorten the amount of time for employers to mount such an opposition campaign. Under the NLRB’s proposal, elections that once took weeks could now be held within 10 days.
In a strongly worded dissent, Brian Hayes, a member of the NLRB, objected to the proposed rule changes, noting that employers will not be provided with sufficient time to communicate their position on unionization and collective bargaining. Specifically, Member Hayes stated:
“What is certain is that the proposed rules will (1) substantially shorten the time between the filing of the petition and the election date, and (2) substantially limit the opportunity for full evidentiary hearing or [NLRB] review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct. Thus, by administrative fiat in lieu of Congressional action, the [NLRB] will impose organized labor’s much sought-after ‘quickie election’ option, a procedure under which an election 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 view about collective bargaining.”

To sum it up, the NLRB has proposed several significant changes to its rules concerning representation. For purposes of clarity and convenience, I have outlined the most significant changes and contrasted them with the current rule here:

1. Currently, Petitions for NLRB elections and other election-related documents cannot be filed electronically. The proposed Rule voter lists may be transmitted electronically.
2. Currently, the amount of time for a pre-election hearing varies by the individual NLRB Regional Office. Under the proposed rules, barring any special circumstances, all pre-election hearings will be held within 7 days of the filing of an election petition with the NLRB.
3. Currently, there is no requirement for the parties to identify or disclose issues in dispute prior to a pre-election hearing. Under the new NLRB proposed rules, prior to the beginning or a pre-election hearing, an employer must produce a “statement of position.” The NLRB Statement of Position must include the employer’s position on disputed topics (e.g., the NLRB’s jurisdiction, appropriateness of the bargaining unit sought; and the type, date, and location of the union representation election).
4. Presently, only after a Regional Director has directed an election is a list of voters produced. Under the new NLRB proposed rules, the party not seeking the election (usually the employer), will be required to file and serve a “preliminary list of voters” which includes names, work location, shift, and classification by the start of the pre-election hearing.
5. Presently, either party can bring forth a challenge of voter-eligibility issues at the pre-election hearing. Under the new NLRB proposed rules, complaints involving eligibility issues raised by either party that involve less than 20% of the bargaining unit would be deferred until after the election.
6. Under the current NLRB rules, either party may request the NLRB formally review the Regional Director’s pre-election rulings prior to the election taking place. In addition, either party may waive their rights to seek review if they do not object to the ruling before the election. However, keep in mind that the NLRB review process will typically delay the election for about 30 days while the review process takes place. In contrast, under the new NLRB proposed rules, either party would be permitted to seek a review of the Regional Director’s rulings through a streamlined post-election request.
7. Under the current NLRB Rules, the final voter list, known as the “Excelsior List”, containing the names and home addresses of the voters must be provided within seven days after the direction of an election. Under the new NLRB proposed rules, the final Excelsior List (voting list) is now required to be provided within two workdays of the direction of an election. Also included in the new proposed Excelsior list will be the voters’ phone number and email address.

The U.S. DOL Seeks To Increase Persuader Reporting

In addition to the changes proposed by the NLRB, the DOL has proposed changes to its interpretation of the persuader reporting requirements set forth in Section 203 of the LMRDA. Section 203 currently requires employers (subject to limited exception) to disclose to the U.S. DOL (via Form LM-10) any arrangement that they have made with a third-party to persuade their employees as to their collective bargaining rights, directly or indirectly, or to obtain information about the activities of a labor organization involved in a labor dispute with the employer.

However, Section 203(c) of the LMRDA provides an exception to the reporting requirement for “advice” given to the employer. In the past, the U.S. DOL has construed this exception broadly to exclude agreements or arrangements where the consultant does not have any direct contact with employees. Accordingly, if a consultant or lawyer were to draft or review communications (e.g., documents, letters, speeches) presented to employees during an organizing drive or in anticipation of an NLRB election, such conduct was deemed “advice,” and therefore there was no need to inform the DOL.

However, should the DOL’s proposal become effective, the term “advice” shall be limited to “oral or written recommendation regarding a decision or course of conduct.” On the other hand “persuader activity” shall include a consultant providing material or communications to, or engaging in other 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 right to organize and bargain collectively. All agreements for persuader activities would need to be reported, even if a consultant/lawyer did not have direct contact with employees.

Accordingly, if lawyers or consultants draft, review, or analyze employee communications, or are otherwise involved in a campaign in opposition to a union’s organizing or collective bargaining efforts, such actions may now trigger the reporting requirements under Section 203. Moreover, these consultants and lawyers will also likely be required to file their own disclosures with the U.S. DOL (via revised Forms LM-20 and LM-21). Form LM-21 is particularly problematic as it requires disclosure of receipts for all labor relations advice or services provided to all employers during the year (regardless of when that advice is related to persuader activity). The primary effect of these disclosure requirements is to obfuscate employers in their efforts to seek advice in connection with a union organizing drive or election.

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  • services sprite NLRB and U.S. DOL Propose New NLRB Rules which will Affect all Union Representation Elections as well as Voter Reporting
  • services sprite NLRB and U.S. DOL Propose New NLRB Rules which will Affect all Union Representation Elections as well as Voter Reporting
  • services sprite NLRB and U.S. DOL Propose New NLRB Rules which will Affect all Union Representation Elections as well as Voter Reporting
  • services sprite NLRB and U.S. DOL Propose New NLRB Rules which will Affect all Union Representation Elections as well as Voter Reporting
  • services sprite NLRB and U.S. DOL Propose New NLRB Rules which will Affect all Union Representation Elections as well as Voter Reporting
  • services sprite NLRB and U.S. DOL Propose New NLRB Rules which will Affect all Union Representation Elections as well as Voter Reporting
  • services sprite NLRB and U.S. DOL Propose New NLRB Rules which will Affect all Union Representation Elections as well as Voter Reporting
  • services sprite NLRB and U.S. DOL Propose New NLRB Rules which will Affect all Union Representation Elections as well as Voter Reporting