Management Memo

Management’s inside guide to labor relations

NLRB Receives Spirited Debate Over Ambush Election Rules During Public Meeting

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For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections. The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA). The positions of the parties were largely split between the labor unions applauding the NLRB’s proposed rule on making elections faster; whereas, the trade associations and management attorneys emphasizing that the NLRB’s proposed rule was unnecessary and a solution in search of a problem.

EBG attorney, Kara M. Maciel, represented the voice of NGA on three separate panels. First, she argued that the NLRB’s proposed rule requiring employers – for the first time – to submit a written position statement within 7 days of the union’s petition setting forth the employer’s entire legal argument, or risk waiver later, is unduly burdensome and risks that the process leading to a pre-election hearing will become more adversarial and less focused on reaching a negotiated pre-election stipulation. Under current procedures, over 90% of petitions are stipulated to without a pre-election hearing, but under the NLRB’s proposed rule, employers could feel pressured to go to a hearing in light of the written position statement requirement.

Second, Maciel testified that the election date should not be accelerated from the current 34 day median to 10-21 days contemplated by the rule. “Hasty decisions are not good decisions” and she noted that “common sense dictates that the greater the time an individual has to inform himself, and to reflect upon and consider all aspects of a decision, the more likely the decision will be a true reflection of the individual’s interests.” NGA is concerned about the due process rights impairing an employer’s protected 8(c) rights under the National Labor Relations Act if there is not sufficient time to communicate with employees about a union petition for representation.

Finally, Maciel expressed concern over the proposed rules compulsory disclosure of employee’s personal and confidential e-mail accounts and phone numbers on voter lists. The non-consensual disclosure constitutes a gross invasion of employees’ privacy and opens employees up to potential use and abuse of their personal information.

The NLRB will now consider all the written and oral comments submitted by the public on the proposed rules; however, it is widely expected that the NLRB will adopt the rules as proposed. Following the rule-making process, it is likely that trade associations could seek to enjoin implementation of the rule through a court challenge. In the meantime, all employers should brace themselves for the rule and implement training and education for their management team on how to respond to union organizing.

For more information on NLRB’s two-day public meeting, please click here.

NLRB Public Meeting: Kara Maciel to Speak on Ambush Election Rules

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Our colleague Kara Maciel will speak on behalf of EBG client, National Grocers Association (“NGA”), at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.

The panels will address the following topics:

  • Panel B.2: Requirement for written statement of position
    Address issues related to the proposed requirement for a written statement of position.
  • Panel E.1 & E.3: Election date
    Please describe the standard to be applied for scheduling an election. The proposed rules state that the regional director should select an election date which is “as soon as practicable.” If you disagree with this standard, please describe the standard you would apply. Specify whether you think the rules should include a minimum or maximum time between the filing of the petition and the election, and, if so, how long this time should be. Also address whether the proposed rules adequately protect free speech interests; if you believe they do not, please state specifically how the proposal can be adapted to adequately address the matter.
  • Panel C: Voter lists
    Address whether or how the rules should address voter lists.

During the open meeting, April 10 and 11, catch the live stream at http://www.nlrb.gov/openmeeting.

College Football Sacked By NLRB: Scholarship Athletes are Employees

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By Steven M. Swirsky and Adam C. Abrahms

The Regional Director for the NLRB’s Chicago Region has found that football players at Northwestern University who receive scholarships are “employees” for purposes of the National Labor Relations Act.  Some of the football players blindsided the University, NCAA and college athletics by filing a petition to be represented by the College Athlete Players Association (CAPA), a putative union funded and supported by the United Steelworkers union. As only “employees” are covered by the National Labor Relations Act, finding them to be employees was necessary before the a representation vote could be held.

The Decision, while finding walk-ones and non-scholarship players not to be employees, found the University to be the common law  employer of team members who are on scholarship and have eligibility remaining are able to vote in an NLRB election to decide whether they want the CAPA  to be their bargaining representative and represent them with in collective bargaining with the University.  The parties’ post-hearing briefs, summarizing the facts and law each side argues are available.

The decision has the potential to totally upend college sports at private colleges and universities across the country.  While the Regional Director’s decision is an important step in the legal process it is by no means the last word on the issue, The University will almost certainly request review of the decision by the NLRB in Washington, DC.

If the Board agrees with the Regional Director, the vote takes place and CAPA wins the election and is certified as the players’ bargaining agent, Northwestern would be able to have the ruling considered by the US Court of Appeals by refusing to bargain. The Court, and this could be either the Seventh Circuit in Chicago of the DC Circuit in Washington, would review the law and the facts and decide whether the NLRB was right or wrong in finding that the relationship between the student-athletes and their university is an employment relationship or not.

Either way the consequence are not limited to either football or the National Labor Relations Act.  If team members are held to be employees for purposes of this law, the ball has been teed up as well as to whether they should also be considered employees for purposes of wage and hour laws, workers compensation law, benefits plans and a list as long as a football field.

An important takeaway from this case and the union’s efforts at Northwestern is that not only is labor more than willing to give it the old college try by throwing out the existing playbooks, but that it is looking at groups who employers have long taken for granted as being either unable or unwilling to organize.

NLRB Expands Scope of Employer Solicitation of Grievances as Unlawful Coercive Conduct

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By Kara M. Maciel and Lindsay A. Smith

On March 12, 2014, the National Labor Relations Board (“the Board”) concluded that a beef processing company committed an unfair labor practice in violation of the National Labor Relations Act (“NLRA”) when it terminated three workers for striking in protest of their working conditions (“Greater Omaha Packing Co.”).  More significant, however, was the Board’s decision to reverse an Administrative Law Judge’s finding concerning the employer’s questioning of an employee.  Prior to the strike, one of the terminated employees’ supervisors requested that the employee come to his office, at which point the supervisor asked the employee what he wanted.  The employee responded that he wanted “an increase” and was immediately terminated by the supervisor.  On these facts, the NLRB found a separate violation of the NLRA under Section 8(a)(1) because it determined that the questioning was coercive, separate and apart from the actual termination of the employee.

Board case law surrounding the unfair labor practice of coercive questioning/solicitation became revitalized this past July when the Board reversed almost 30 years of precedent with its decision in Albertson’s, LLC.  Under Section 8(a)(1) of the NLRA, an employer is not allowed to interfere with, restrain, or coerce employees in the exercise of their rights.  The Board has found that an employer’s solicitation of employee grievances can be considered coercive because it “raises an inference that the employer is promising to remedy the grievances” and/or may convey the employer’s displeasure with the employee, as was the case in Greater Omaha Packing, Co.  This treatment of employer questioning has a long-standing basis in Board precedent, however, the Board reversed its precedent in Albertson’s, LLC by finding that such questioning violates the NLRA even if an employee fails to state a grievance or remains silent.  Therefore, the Board in Greater Omaha Packing, Co, reinforced its treatment of grievance solicitation and expanded the possible bases for a violation of Section 8(a)(1).

Although the affected employee in Greater Omaha Packing, Co. did express a grievance in response to his supervisor’s solicitation, the decision is significant in its warning to the Board.  Member Johnson concurred in the decision, but warned that the Board should not take this so far as to adopt a “gag rule” that would discourage employers from discussing the merits of workplace complaints with an aggrieved employee, specifically where those employees are unrepresented.  He asserted that there is actually nothing “more conducive to labor peace” than an employer and aggrieved employee being able to meet and discuss their views as to what is fair and to determine what the employees want.

Management Missives

These recent cases are important because employers must be aware that their ability to solicit grievances directly from an employee is limited by Section 8(a)(1) of the NLRA.  Even straightforward questions such as “what do you want,” may be interpreted by the Board as coercive based on the context of the question and its implications from the perspective of the employee. 

An employer may avoid being perceived as using coercion if they:

  • Establish a policy and practice of open dialogue with employees before and unrelated to union or other protected activity;
  • make certain participation by an employee is completely voluntary;
  • engage in a real discussion with the employee about the opposing views and possible solutions;
  • inform the employee there will be no reprisal based on the employee’s participation in the discussion;
  • avoid linking any discussion with current union or other protected activity, and
  • take steps to address some of the concerns raised by the employee as a part of the regular open dialogue practice. 

Webinar, April 8: OSHA’s Temporary Worker Initiative

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Our colleague Eric Conn, Chair of Epstein Becker Green’s OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA’s Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the “Employer Mandate” kicks in, which will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. With this anticipated increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014 and has already launched a Temporary Worker Initiative.

This webinar is the first of a five-part series for employers facing the daunting task of complying with OSHA’s numerous federal and state occupational safety and health standards and regulations.

Read more about the webinar and the series, or click here to register.

NLRB Seeks Speakers for Public Meeting on Ambush Election Rules

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By Kara M. Maciel

Today, EBG client, National Grocers Association (“NGA”), filed a request to speak at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.

NGA is the national trade association representing retail and wholesale grocers that comprise the independent sector of the food distribution industry.  NGA requested to speak on 4 key issues being contemplated by the NLRB:

  1. Timing of the Election.  NGA opposes any reduction in the scheduling of the election because hasty decisions don’t make good decisions.  Free speech is the cornerstone of the Act’s statutory protections, and the NPRM eviscerates an employee’s opportunity to become fully informed.  Instead of deliberately evaluating all relevant information, employees will be rushed into voting without a full opportunity to receive facts, contemplate the consequence of their decision, and make an informed choice whether to be represented by a union.  By the filing of a petition, a union has had ample time to have convinced 30% of the proposed unit to sign cards; how can the other 70% be expected to make an informed decision in a few days?  Employees faced with making such an important workplace decision should be able to do so in an environment conducive to reflection and thought, not one that sacrifices deliberation for speed.  The NPRM forces employees to act in haste and repent at leisure.  There is no legitimate analysis supporting a need to hasten the time before an election and certainly nothing supported by empirical evidence from the Board, especially when its own data confirms that the median time between a petition and election was 38 days.
  2. Compulsory Disclosure of Private Email and Phone Numbers.  NGA is concerned about the NPRM’s proposal of compulsory disclosure on voter lists to include personal and confidential e-mail accounts and phone numbers.  This non-consensual disclosure constitutes a gross invasion of employees’ privacy.  To require employers to collect that information after the direction of an election and share it with third parties without any safeguards on how that information is handled would be unduly burdensome and intrude on employees’ privacy rights.  At a minimum, employees must be allowed to opt-in to share private information with outsiders.  Only with their specific consent can the Board not place at risk the privacy interests of workers. Even more disconcerting to employees’ privacy interests is how the information could be used.  It is not inconceivable that individual organizers could abuse this information, causing irreparable harm to employees.  As security breaches become widespread with identify theft as the fastest growing white collar crime, companies must be ever vigilant in protecting their employee’s personal information.  There are no safeguards contemplated by the NPRM to protect against unforeseen abuses with this private information.  Identity theft, harassment or other abuse of personal information can happen without the union’s knowledge, and there is no mechanism for the Board or anyone else to effectively sanction individuals against misuse.  Disclosing private email and phone numbers to labor unions within 2 days after direction of an election does not further the Act’s statutory purposes.
  3. Changes to Litigated Issued During Pre-Election Hearing.  There are due process problems contemplated by the NPRM’s changes to the litigated issues during the pre-election hearing.  The heart of a representation petition is whether there is a question concerning representation.  The Board must determine if 30% of the unit has made a showing of interest, and the Board cannot fulfill this statutory function without knowing the unit’s composition.  To direct an election when disputes exist over voter eligibility of less than 20 percent of the unit would create vast uncertainty and confusion.  Ultimately, an election would occur that conceivably could include supervisors, who are statutorily excluded.  If the individuals in dispute did not reach the 20 percent threshold, and the union won, the result would find supervisors represented by a labor union.  How can employees make an informed decision about representation when they are confused about who else will be in the unit?  The prejudice created by postponing voter eligibility challenges until post-election is akin to a litigant not being able to disqualify a juror until after the verdict is rendered.  The NPRM fails to consider the potential impact that the Board’s ruling in Specialty Healthcare will have on determining who should be included or excluded from a petitioned-for unit, and creates more questions than answers for employers and confusion during the election process as to who is eligible to vote.
  4. Waiver of Issues at Pre-Election Hearing.  One of the main changes contemplated by the Board would require the parties to raise every possible argument at the initial election hearing, or risk waiving those arguments.  Accordingly, within days of the union filing a petition, the employer must get a handle on the organizing drive, including who is being proposed to be included in the unit (and whether such a unit is proper) and make an informed decision as to what issues to raise at the hearing, just a few days later.  Small business owners are not armed with legal staff and it would necessarily take time to locate, retain and consult appropriate labor counsel on the significant business and operational issues posed by the union’s petition.  By requiring employers to put everything in a statement of position at a pre-election hearing or be subject to a waiver increases the adversarial nature of the proceeding and makes it even less likely that the parties will resolve disputes early in the process.  Fearing that they may waive issues not set forth in writing, employers may be less inclined to enter into stipulated or consented to elections.    Accordingly, employers should be able to supplement or amend their statement of position as facts and the election process develops.

Management Missives

As previously reported, it is with intention that the Board’s proposed rules will significantly alter the entire union representation election process in favor of unions. Although it is a proposed rule at this point, and the Board will be accepting public comment through April 7, 2014, with a public hearing that same week, it is likely that the final rule will be issued not long thereafter. To prepare for the Board’s “ambush” election rules, employers should promptly adopt any or all of the following strategies:

  • Examine your workforce for potential vulnerability to union organizing, including wage and hour violations or uncompetitive wages or benefits.
  • Review and update workplace policies that become relevant during union organizing such as solicitation/distribution, electronic communications, and social media.
  • Assess your workforce for potential bargaining unit issues like identifying who are supervisors and which employees share a “community of interest.”
  • Train your managers and supervisors on recognizing early warning signs of union organizing and responding lawfully to union campaigns.
  • Contact legal counsel with any questions or for any assistance with ensuring you are prepared to respond to an organizing campaign consistent with the proposed rules.

Persuader Rule Postponed: Employers Get Temporary Reprieve from Assault on Attorney-Client Privilege

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As we noted in “First Kill All The Lawyers“, last November the DOL announced its intention to move forward this month with the Administration’s Proposed Rule change which would eviscerate the Advice Exemption to the Persuader Rule .  Yesterday, the DOL again delayed its timeline for finalizing the Rule.

In November the DOL’s announcement asserted that it intended to publish a Final Rule in March.  On March 6, according to Bloomberg BNA, a DOL spokesman asserted that the Proposed Rule would NOT be made final this month.  The DOL did not give a new target date for finalizing the Rule, rather it stated it would provide a new date in its Spring Regulatory Agenda which is not scheduled to be released for some months.

The Proposed Rule Would Eviscerate the Advice Exemption and Attorney-Client Privilege

The Proposed Rule radically alters the regulations implementing the “Advice Exemption” to the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA.”). For over 50 years this Advice Exemption has been properly, effectively and simply administered by distinguishing direct communications with employees from an attorney’s counsel to an employer-client.  The existing regulations have provided a clear line of demarcation; as long an employer’s lawyer or consultant did not communicate directly with employees and as long as the employer remained free to accept or reject any draft materials prepared  by them (speeches, letters, written communications, etc.), they were covered by the Advice Exemption and not subject to disclosure or reporting by the employer or the counselor.

The Proposed Rule intentionally eviscerates any meaningful use of the Advice Exemption which would be swallowed up by the new expansive definition of  persuader activity which could include discussion regarding strategy, reviews of employer drafts and myriad other ways labor attorneys currently aid their clients including essentially any meaningful advice or counsel provided by labor counsel.

Postponement Possibly Prompted By Opposition/Election Concern

The Proposed Rule was originally proposed in June 2011 but drew immediate criticism of everyone from Senators, to both employer and employee rights groups, to the American Bar Association raising serious ethical, economic and practical concerns.  Until November the Proposed Rule was seemingly put on the back burner as the President focused reelection and other issues.

As the stated March deadline approached, the opposition intensified with a slew of major employer groups expressing opposition  to the Proposed Rule and urging the DOL to withdraw it or in the least postpone it to be considered in conjunction with the potential changes to DOL Form LM-21 (one of the required disclosure forms related to persuader activity).  As the DOL has stated it does not plan on making changes to the Form LM-21 until  October 2014, the employer groups argued that changes to the Persuader Rule should at least be postponed so it could be considered together with the closely related LM-21.

Though the DOL has yet to confirm, it is possible this opposition has led to the postponement.  It is also possible that Congressional and Senate Democrats, under pressure from these employer groups and others, have sought help from the Administration to postpone the controversy until after the 2014 elections.  Either way, what seems clear is that while Employers and the traditional Advice Exemption may have a temporary stay, at least for the time being, the DOL still seems intent on “Killing All the Lawyers.

Management Memo will keep readers updated with further developments on the Proposed Rule and will provide Management Missives on how to cope should the Final Rule resemble the Proposed Rule.

Overbroad Handbook Policies May Constitute Unfair Labor Practices

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By Maxine Neuhauser

As we have discussed on a number of prior occasions (Fifth Circuit Rejects The NLRB’s D.R. Horton Decision On Arbitration Waivers; Obama’s Labor Agenda Continues to Advance – Griffin Confirmed as NLRB GC; NLRB Administrative Law Judge Finds Medical Center’s Technology Usage Policies Violated Employees Rights Under the National Labor Relations Act. and Labor Law vs. Common Sense – NLRB Continues Targeting Non-Union Employers and Common Sense) the National Labor Relations Board (“NLRB” ) and its Administrative Law Judges continue to find that employment policies designed to provide protection to employers and employees may be unfair labor practices (ULPs) under the Act.

In Boch Imports, Inc. d.b.a. Boch Honda and International Ass’n of Machinists, Case No. 1-CA-83551 (Jan. 13, 2014), the ALJ ruled that multiple provisions in the employee handbook of a retail automobile dealership (“Boch” or “Company”) constituted ULPs in violation of of the National Labor Relations Act (“Act”) because they impinged on the employees’ rights to discuss their conditions of employment and to engage in concerted activities.  The ALJ targeted the following policies:

  • Confidential  and Proprietary Information. This provision included a prohibition barring employees “from disclosing or authorizing the disclosure or use of any “Confidential Information,” including “compensation structures and incentive programs.”
  • Discourtesy. This provision included a prohibition of employees ,“use of profanity or disrespect to a … co-worker  or engaging in any activity which could harm the image of the Company. . .      .”
  • Inquiries Concerning Employees. This provision included a  prohibition barring employees from providing, “personal information of any      nature concerning another employee (including references) to any outside      source unless approved by the Human Resources Department and authorized,      in writing by the employee . . . .”
  • Social Media Policy.This policy included provisions  that:
    •  prohibited employees from disclosing any information about the Company’s employees or customers;
    •  required employees to identify themselves when posting comments about the Company or its business;
    •  prohibited employees from referring to the Company in postings that would negatively impact the Company’s reputation or brand;
    •  prohibited employees from engaging in activities that could have a negative effect on the Company, even if occurring off Company property or off the clock;
    •  prohibited employees from using the Company’s logos for any reason;
    •  prohibited employees from posting videos or photos recorded in the workplace;
    •  required employees to contact the Company’s Vice President of Operations before making statements to the media;
    •  required employees to provide the Company with access to any commentary posted by employees on social media sites; and
    •  required employees to write and post respectfully.
  • Solicitation and Distribution. This provision restricted non-employees from soliciting and distributing literature or other materials at any time on property adjacent to the Company’s premises.
  • Dress Code and Personnel Hygiene. This provision barred, “Employees who have contact with the public” from wearing “pins, insignias, or other message clothing which are not provided to them by the Company . . . .”

The ALJ upheld the ban on the wearing of pins because of the potential for pins to cause accidental damage to vehicles (e.g., by falling into an engine or scratching a vehicle’s interior or exterior). The ALJ ruled, however, that the blanket prohibition to insignias on clothing constituted a ULP because customer exposure to insignias, “alone, is not a special circumstance allowing the employer to prohibit the display.” Rather, “There are numerous factors that need to be weighed to determine whether a displayed item constitutes special circumstances and should be permitted, including size and the message thereon.”

The Boch decision addresses many, but not all, of the employer policies that the NLRB has been targeting recently. In December 2013, for example, an ALJ found that an employer’s “No Gossip Policy” constituted a ULP. In Laurus Technical Institute and Joslyn Henderson, Case 10-CA-093934 (Dec. 11, 2013). The employer, a school, had fired an employee for violating the school’s no-gossip policy, which defined “gossip” as including:

  • talking about a person’s professional life without his/her supervisor present;
  • negative, or untrue, or disparaging comments or criticisms of another person or persons; and
  • creating, sharing, or repeating a rumor about another person.

The ALJ in that case had no difficulty in finding that the no-gossip policy was overbroad and that the employee’s discharge for violating the policy likewise violated the Act.

The Boch and Laurus decisions illustrate the increased scrutiny that the NLRB has been giving to employee handbooks over the past few years. These and other recent cases show that the NLRB is taking aim at employee handbooks and broadly interpreting whether an employer’s policies and prohibitions would reasonably tend to chill employees in the exercise of their statutory rights under the Act. Accordingly, employers that have not done so recently may wish to consider a handbook review.

 

 

Going Through Withdrawal: A Step-By-Step Guide to Arbitration in Multiemployer Withdrawal Liability Disputes

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Our colleague Mark M. Trapp recently wrote an article entitled “Going Through Withdrawal: A Step-By-Step Guide to Arbitration in Multiemployer Withdrawal Liability Disputes” which appears in the current issue of the ABA Journal of Labor & Employment Law (members only).   

Following is an excerpt:

Many employers with a unionized workforce contribute to multiemployer pension funds established by collective bargaining agreements. In recent years, due to a variety of factors, most multiemployer funds have faced significant underfunding. As employers have exited these funds, either voluntarily through negotiating out or involuntarily because of union decertification, many have had to become familiar with the concept of withdrawal liability.

Withdrawal liability is the employer’s proportional share of the pension plan’s unfunded vested benefits. Under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), which amended ERISA to establish liability, when an employer withdraws, the plan sponsor must determine the amount of withdrawal liability, notify the employer of the amount, and collect the amount from the employer. Those three words—determine, notify, and collect—sum up the one-sided nature of the process established under the MPPAA and describe what almost always happens: The fund determines, notifies, and collects. Employers simply pay the amount demanded by the fund, usually hundreds of thousands, or even millions, of dollars.

Read the full article here

Groundhog Day: Pro-Labor NLRB Again Attempts to Put The “Fix” In Union Elections: Reissues Discredited “Ambush” Election Rules

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By Steven M. Swirsky, Adam C. Abrahms, Kara M. Maciel, and Casey M. Cosentino

As previously predicted by the Management Memo on August 1, 2013 and October 30, 2013, the National Labor Relations Board (the “Board”) issued a second Notice of Proposed Rulemaking (“NPRM”) to amend its existing rules and regulations governing union elections procedures. If they look familiar when you see them, there is a good reason for that: you have seen them before.

As readers of the Management Memo are well aware, the NPRM is the latest development in the long saga of organized labor’s attempts to “fix” the representation election process in its favor. Most significantly, the Board’s current attempt only comes after having its more modest 2011 attempt struck down by a federal judge.

The present proposal is identical “in substance” to the Board’s original proposals first contemplated on June 22, 2011, and as such are more aggressive than the Rules ultimately adopted on December 21, 2011, and later struck down. The Board claims the proposed amendments are necessary to, among other things, facilitate the swift resolutions of questions concerning representation, simplify representation-case procedures, eliminate needless litigation, and consolidate all requests for review of regional directors’ determinations into one post-election request. However, if adopted as written, the proposed rules will radically up-end 75 years of Board practice and make it considerably easier for unions to organize employees and win elections.

History of Proposed Rule

The Board first contemplated the proposed amendments in a notice of proposed rulemaking on June 22, 2011. Following a period of public comment, the Board issued a final rule on December 22, 2011, that adopted some of the proposed amendments but deferred other more controversial aspects of the proposed amendments for further consideration. The final rule was immediately challenged in federal court. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp. 2d 18, 21, 24 (D.D.C. 2012). In May 2012, the D.C. District Court struck down the final rule on procedural grounds. In response, the Board suspended the implementation of changes to its election representation case process.

Proposed Amendments to the Election Procedure

To the favor of unions, the proposed amendments announced this week would significantly change the existing procedures for union elections in the following ways:

  • Permit electronic filing of election petitions.
  • Require pre-election hearings to be held within 7 days after a hearing notice is served, shortening the time period between the petition and election.
  • Require employers to file a detailed statement of position on any and all issues involved in the petition before the hearing commences (i.e., within 7 days of first receiving notice of the petition). Failure to present an issue in the statement would constitute waiver of the issue in all future proceedings.
  • Grant hearing officers the authority to limit the issues to be heard at the hearing, depriving employers of their ability to litigate valid legal/factual positions prior to an election.
  • Defer resolution of voter-eligibility issues to post-election challenges until after an election, replacing the longstanding practice of having a pre-election hearing to determine such issues. This will allow unions to claim that some supervisors should be included in the bargaining unit, which could prevent an employer from utilizing them in the campaign to communicate its own position to the employees they supervise.
  • Grant hearing officers the authority to deny an employer the ability to file a post-hearing brief.
  • Eliminate an employer’s ability to seek Board review of a Regional Director’s rulings, which would also reduce the time between the petition and election.
  • Shorten the time for holding an election to as early as 10 days after the Regional Director’s direction of election (down from the typical 25 to 30 day minimum that now exists)
  • Require an employer to provide the NLRB with the list of voters’ names and addresses within 2 days after the Regional Director’s direction of an election instead of 7 days.
  • Require employers to provide the phone numbers and email addresses of all eligible voters as well as specifying each employee’s work location, shift, and classification. Currently, employers must only provide name and mailing address to the NLRB, which it then provides to the union. Since unions will use be able to use this information during the days before the election, it is feared that instances of organizers harassing and coercing employees will significantly increase.
  • Grant the Board discretion to deny review of post-election rulings. Currently, the Board is required to decide post-election disputes.

The Board’s False Pretenses and True Intended Harm of “Ambush” Elections

The Board asserts these election “fixes” are necessary to address alleged long delays in the representation process; however, such delays are rare. To the extent that the NPRM seeks to address election delays, objective data of NLRB elections conducted between 2008 and 2010 shows that such delays occurred less than 10 percent of the time. In fact, currently median time between petition and election is only 38 days and almost all elections occur within 56 days. The Board’s current proposal, however, could shorten that period to 10 to 21 days, which essentially eliminates the ability for employers to make a full and meaningful presentation of their position or employees to make a truly informed choice.

Typically, union organizers campaign under the radar for months before a petition is filed and unions wait until they believe that they have the support of the majority of the employees in a unit before they file a petition. Shortening the election period so drastically will erode an employer’s ability to respond to the union’s propaganda and communicate its position on union representation. Employees will vote without having the benefit of hearing the employer’s position. This contravenes the express purpose of the Act, which is to protect employee rights— not union rights and would gut the right that employers are granted by the Act to communicate their positions to employees. This one-sided campaign will almost certainly result in more election victories for unions and less real choice for employees.

Management Missives

It is with intention that the Board’s proposed rules will significantly alter the entire union representation election process in favor of unions. Although it is a proposed rule at this point, and the Board will be accepting public comment through April 7, 2014, with a public hearing that same week, it is likely that the final rule will be issued not long thereafter. To prepare for the Board’s “ambush” election rules, employers should promptly adopt any or all of the following strategies:

  • Examine your workforce for potential vulnerability to union organizing, including wage and hour violations or uncompetitive wages or benefits.
  • Review and update workplace policies that become relevant during union organizing such as solicitation/distribution, electronic communications, and social media.
  • Assess your workforce for potential bargaining unit issues like identifying who are supervisors and which employees share a “community of interest.”
  • Train your managers and supervisors on recognizing early warning signs of union organizing and responding lawfully to union campaigns.
  • Contact legal counsel with any questions or for any assistance with ensuring you are prepared to respond to an organizing campaign consistent with the proposed rules.