Tag Archives: Union organizer

Sign of the Times 2014: NLRB and DOL Are Poised to Proceed With Pro-Labor Rules

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.

Neutral? Not Exactly. The End of the Union Neutrality Agreements?

Contributed by Steven Jados

Last week, we briefly introduced Unite Here Local 355 v. Mulhall, a case in which the U.S. Supreme Court will determine whether a union neutrality agreement can be a “thing of value” paid, lent, or delivered to a union in violation of Section 302 of the Labor-Management Relations Act (“LMRA”).  The LMRA was enacted for purposes including the protection of employees’ freedom to choose whether or not they want a union.

With that purpose in mind, when the Court hears oral argument in November, several justices are likely to be troubled by how little the agreements have to do with neutrality.  Instead, the agreements often require the employer to actively assist the union.  In truth, neutrality agreements are a means for one particular union to fast-track its way to representative status for employees who may never have heard of the union, let alone shown any interest in having the union as their representative.  

The assistance sought in Mulhall included giving the union (that is, the particular union that proposed the agreement, but not any other union) the right to come onto the employer’s property during working hours to give pro-union speeches to an assembly of workers.  (Apparently the union has no problem with so-called “captive audience” speeches when the union is giving them.)    

Additionally, the neutrality agreement in Mulhall required the employer to recognize the union as the collective bargaining representative only upon a showing of authorization cards, sometimes referred to as “card check,” a procedure far less reliable than the secret ballot election typically used. 

The true benefit of the neutrality agreement to a union is that the agreement bypasses expensive, time-consuming processes that include actually convincing employees to choose the union, convincing them not to choose a competing union, overcoming employer opposition, and winning an election.  Those processes can cost a union hundreds of thousands of dollars just in legal fees.    

As such, there can be little question that a neutrality agreement is a thing of value as a matter of plain English.   Whether that is so as a matter of law remains to be seen.  

Predicting the outcome of Supreme Court cases is virtually impossible.  That said, organized labor has little reason to believe it has five friends on the Court, especially when a decision against the union can be framed as both pro-business and pro-employee.  (The union’s opponents, Mulhall and Hollywood Greyhound Track, Inc., are an employee and his employer, respectively.) 

Whatever the Court decides, it will likely have a significant impact on union organizing strategies in the coming years.

OSHA Guidance Gives Unions Another Foot in the Door at Your Non-Union Facility

Contributed by Jonathon Hoag

An OSHA letter of interpretation was recently released announcing that non-union employees can select a union organizer to be the employee’s representative during OSHA inspections.  This change is not the result of new or amended OSHA regulations. 

The OSHA regulations have always clearly stated that the representative authorized by employees shall be an employee of the employer.  The regulations explain that accompaniment by a third party who is not an employee should only be done when “good cause” is shown, such as when it is necessary to have an industrial hygienist or a safety engineer present.  Notwithstanding that the regulations only allow third-party representatives in narrow circumstances, OSHA’s recent interpretation now provides that a third party is “reasonably necessary” as long as they make a positive contribution. 

The presence of a union organizer during OSHA inspections presents obvious risks and detriments to the non-union company.  To avoid the potential result of allowing union organizers to be a part of OSHA’s physical inspection, non-union employers should act now to make sure an employee representative is in place to participate in safety inspections and that the selected individual is trained and knowledgeable about safety and health issues.  The interpretation letter might state that OSHA can allow third-party representatives when in its view the third party will make a “positive contribution,” but the regulations are clear that there must be “good cause” to allow a third-party representative.  Employers must be prepared to illustrate to the OSHA inspector that the employees’ representative has more than sufficient knowledge and skill to participate in the physical inspection, especially compared to the knowledge and skill of the third-party representative. 

In short, non-union employers should challenge any attempt to have a third-party representative by establishing that there is not “good cause” to permit a union representative to accompany the OSHA inspector during physical inspections.