Labor Law Reform By The Back Door

As Congress continues to struggle with the Employee Free Choice Act and other labor reform legislation, organized labor is looking to advance its agenda by other means. One area of focus by unions is to use their influence to achieve transformational changes at labor regulatory agencies such as the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) by the use of rulemaking procedures. One recent example is the DOL’s August 2009 proposed rules which would require federal contractors to specifically advise their employees that:

• It is the policy of the United States to encourage collective bargaining
• Employees have the right to strike or picket unless their union has agreed to a no-strike clause
• Employees have the right to discuss terms and conditions of employment with co-workers or a union; join other workers in raising work-related complaints with the employer, government agencies, or members of the public; and seek and receive help from a union subject to certain limitations.

The proposed DOL rule, however, contains little language addressing the many recognized legal limitations on these rights or the fact that a key foundation of federal labor law is the right of employees to choose or not to choose to be represented by a union. The proposed rule is currently pending.

A more recent example of labor-friendly agency rulemaking involves the National Mediation Board (NMB). On November 2, 2009, the NMB issued a proposed rule that, if adopted, would overturn 75 years of agency history. As proposed, the rule would change how the NMB counts employee votes in elections under the Railway Labor Act to determine whether the employees wish to be represented by a union. Two months after a union coalition sought this rule change, two members of the NMB (who are former union officials) attempted to propose the change without even allowing for a dissenting opinion or public hearing. As the result of public and political pressures, a limited dissent was permitted and a public hearing will be held. The NMB’s actions, however, show the significant influence of organized labor within the current administration.

Although many employers may not be impacted by the above-discussed proposed rules either because they are not federal contractors or under the jurisdiction of the NMB, we foresee a growing trend among a number of federal agencies to attempt to use rulemaking to advance the goals of organized labor and other worker rights groups.

One agency that is likely to quickly embrace rulemaking to change longstanding procedures is the NLRB. There are currently two petitions for rulemaking pending at the NLRB and more under discussion. One rule would allow the NLRB to certify so-called “minority” bargaining units. If such a rule were adopted, unions could organize a handful of employees at a worksite and have the NLRB certify the union as the representative of this small group of employees even though a majority of employees within the bargaining unit have NOT chosen to be represented by the union. Such a rule, if upheld, would completely change the nature of employer-union relations within the United States. The second proposed rule is similar to one proposed by the DOL in August and would require the NLRB affirmatively to advise all employees covered by the National Labor Relations Act of their rights to engage in union activity or concerted activity. It is noteworthy that the NLRB just last month hired a public affairs professional whose particular expertise is in reaching large audiences through the use of social networking systems such as Twitter and Facebook.

Beyond these proposed rules, the NLRB has established a committee to explore methods of speeding up union elections. This committee is also analyzing and will be making recommendations regarding the use of telephone and internet balloting as opposed to the NLRB’s traditional methods of conducting an election. Any proposed changes resulting from this committee’s work would be promulgated through the rulemaking procedures. Even if the Employee Free Choice Act is not passed by Congress, such changes likely would impact the playing field with respect to union organizing and give employers less time to react to union organizing campaigns.

The bottom line is that while organized labor’s legislative initiatives have to date been delayed, the federal agencies entrusted with enforcing federal labor laws are actively moving on a parallel course to implement pro-labor rules and procedures, which themselves have the potential to significantly change the labor-management landscape.

We will continue to monitor labor-related rulemaking initiatives and notify our clients of any significant developments.

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