Contributed by Beverly Alfon
Employers have been playing a game of wait-and-see for the past couple of years. In 2011, the National Labor Relations Board (NLRB) and the Department of Labor (DOL) simultaneously introduced proposed rules that would have a severe impact on employers: the NLRB “quickie” election rules and the DOL persuader activity reporting rule. Although the NLRB adopted the ambush election rules in 2012, they were immediately sidetracked in litigation and have not been in effect. Similarly, the DOL never issued a final rule on persuader activity reporting. Now, with a complete five-member NLRB and a new Secretary of Labor, these two agencies have made clear that these pro-labor rules are a priority for 2014.
NLRB “Quickie” or “Ambush” Election Rules
On November 26, 2013, the NLRB issued its semiannual regulatory agenda. It focused on the quickie election rules that were invalidated by a federal district court less than one month after issuance on the basis that they were adopted without a proper Board quorum. Those rules were suspended pending appeal of the case and the U.S. Supreme Court’s consideration of Noel Canning (the case regarding the validity of President Obama’s recess appointments of NLRB members in January 2012). However, on December 9, 2013, the NLRB voluntarily dismissed its appeal – removing the quickie election rules from the litigation track and repositioning it on the fast track toward agency adoption and implementation.
Among other things, the 2012 ambush election rules cut in half the time between a union’s filing of a representation petition and an election – the crucial period for an employer to counter a union’s organizing efforts – from a 42-45 day period to a 10-21 day period. They also limited the scope of pre-election hearings and provided the agency with the discretion to review post-elections decisions, rather than automatically requiring such review. It will be interesting to see if this time around, the NLRB will again propose more severe rules like the ones that it ultimately did not adopt in 2012 – including requiring the employer to produce a voter list with employees’ phone numbers and email addresses prior to the pre-election hearing (which would give a union direct employee access before any unit disputes are determined) and speeding up the timing of a pre-election hearing, further shortening the pre-election period.
DOL Persuader Rule
On November 26, 2013, the DOL also issued its semiannual regulatory agenda. It indicated that the final persuader rule will be issued in March 2014. The proposed persuader rule interprets a part of the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”) that requires employers and their labor relations consultants to report any arrangement between them involving the consultants’ attempt to, directly or indirectly, persuade employees to exercise or not to exercise their rights to organize.
Historically, lawyers have been excluded from this reporting requirement provided that they limit their activity to providing the employer with advice or materials for use in persuading employees and avoid direct contact with the employees. That interpretation has allowed employers to seek labor advice without fear of potential disclosure of attorney-client privileged information (e.g., the very fact that the company has hired an attorney to assist with counter-organizing campaign). In contrast, the proposed rule would blanketly require attorneys and employers to report “all actions, conduct, or communications that have a direct or indirect object to persuade employees,” including among other things:
- drafting, revising, or providing materials or communication of any sort to an employer for presentation, dissemination, or distribution to employees; and,
- developing employer personnel policies or practices designed to persuade employees.
This is significant because it could require an employer who seeks any advice on a labor issue to disclose the relationship, including fees paid and the purpose of the arrangement, to the DOL. Such sensitive information would be available to unions, customers, competitors, financial institutions, etc. Many critics believe that the rule will dissuade employers from seeking professional counsel regarding any labor related matter – which will inevitably lead to gains for unions.
Bottom Line: It is clear that the NLRB and DOL are quickly moving towards severely limiting an employer’s ability to counter union organizing efforts. If union avoidance is your company’s goal – now is the time to evaluate your company’s efforts to reach or maintain that goal.