DOL and NLRB Proposed Rules Designed to Facilitate Union Organizing

With organized labor’s hopes for the Employee Free Choice Act a fading memory, new rulemaking proposals by both the Department of Labor (“DOL”) and National Labor Relations Board (“NLRB” or “Board”) are giving labor unions a renewed reason to cheer. Yesterday the DOL announced its new proposed standards for interpreting and enforcing the Labor-Management Reporting and Disclosure Act (LMRDA). Today the National Labor Relations Board announced proposed rules to expedite the union election process. If these proposed rules are adopted, they will significantly shift the playing field and make it far easier for unions to organize employees.

Under the NLRB’s proposed election rules, the Board would permit the electronic filing of election petitions and other documents; require the employer promptly to submit not only its employees’ names and addresses for the union’s use, but also their telephone numbers and e-mail addresses where available; require the employer either promptly to identify any issues regarding the composition of the proposed bargaining unit, day time and place of the election, and other election-related matters or lose the ability to later litigate them; defer any litigation of most voter eligibility and other election issues until after the election is conducted; and consolidate all election-related litigation or appeals into a single process following the election. Significantly, the NLRB would also make the review of any post-election decisions discretionary rather than mandatory.

While the Board did not dictate a timeline for the conduct of an election, the lone Republican on the current four-member NLRB, Member Brian Hayes, indicated that the expedited election process would result in elections taking place between 10 and 21 days after the filing of that petition as contrasted with the current 42 to 45 day timeline.

The Notice of Proposed Rulemaking includes a 60 day comment period, followed by a 14 day period for responses. With the notice adopted by the three Democratic-appointees to the Board (all of whom are former union attorneys), dissenting Member Hayes questioned the need for any rule changes noting that the NLRB meets and in many cases exceeds its own time targets for processing election petitions. Further, he first noted that, contrary to its usual practice, the Board proposed these revised rules without seeking prior input from the Board’s own standing Rules Revisions Committee or the Practice and Procedure Committee of the American Bar Association’s Labor and Employment Law Section. More importantly, however, Member Hayes noted that the proposed rule is merely a transparent attempt to limit both an employer’s ability to contest union election issues and its legitimate opportunity to communicate its own views about unionization with employees.

One of the virtues of the current NLRB election process is that it permits not only employees who have signed authorization cards (whether based on their own preference for a union, peer pressure, or simply to secure a secret ballot election), but also employees who may have been unaware of the union organizing drive, to cast informed ballots in secret. The shorter the election process, the less time that an employer and other employees will have to express or formulate their views about the pros and cons of unionization.

The DOL’s proposed rulemaking would simultaneously significantly expand the requirement that employers and their outside consultants report fees incurred in persuading employees about whether or not to exercise their rights under the National Labor Relations Act (“NLRA”). Reversing decades of consistent interpretation, the new reporting rules would require employers and their consultants to file reports with the DOL detailing payments for union-related advice and services given to employers. In addition, the proposed rule would require employers to report their own internal costs, including wages paid to the employer’s own managers and employees, for time spent engaging in activities such as planning employee meetings and deciding upon employment policies, practices, and handbook policies that are arguably designed to persuade employees about union issues.

These reports would be publicly available and would likely be used aggressively by labor unions during their organizing efforts. For example, a union might argue that funds spent to counter a union organizing drive could more effectively have been provided in additional wages to members of the potential bargaining unit. Critics argue that the expanded filing requirements (and potential criminal penalties) under the proposed rule will have a chilling effect on an employer’s willingness to obtain legal counsel or engage in its own lawful free speech to employees about union issues. Like the NLRB’s proposed rule, the DOL’s proposed rule making is subject to a 60 day comment period.

While yesterday’s announcement from the DOL and today’s announcement from the NLRB are independent of each other, there is no question that both agencies are cooperating as never before. On January 20, 2011, the DOL announced that the NLRB has begun advising the DOL whenever a union files a petition for an election. Based on that information, the DOL is now sending a letter to the employer and its representative in the NLRB case reminding them of the current reporting requirements under the LMRDA. With a broader definition of reportable persuader activity and shortened time periods for NLRB elections, it is likely that fewer employees will be willing or able to effectively communicate their views about unionization. Thus, organized labor has new hopes that unionization rates will increase.

For more information, please contact the Seyfarth attorney with whom you work or any Labor & Employment attorney on our website.