• NLRB Attempts To Use Rulemaking Authority To Enact Provisions Of The Legislatively Rejected Employee Free Choice Act
  • August 29, 2011 | Author: David R. Keller
  • Law Firm: Barley Snyder - Lancaster Office
  • When appointed to the National Labor Relations Board (NLRB) by the Obama administration, Craig Becker made it quite clear that he intended to use the NLRB’s rulemaking process to enact provisions and positions favorable to his long-time friends in Big Labor. In an attempt to make good on that promise, in June 2011 the NLRB proposed new rules governing the filing and processing of election petitions. The proposed rules are essentially an attempt to circumvent the legislative failure that was the Employee Free Choice Act (EFCA). The NLRB is attempting to sell these new regulations on the basis that they “would simplify representation-case procedures and render them more transparent and uniform across regions, eliminate unnecessary litigation, and consolidate requests for Board review of regional directors’ pre- and post-election determinations into a single, post-election request.”
    The proposed rules would permit parties to file electronic petitions, a change the Board says will “insure that the earliest possible notice of the pendency of a petition is given to all parties.” The proposed rules would also shorten the time period for producing certain documents. Employers, for example, would need to produce an electronic voter list within two days (as opposed to seven, under the current rules) after the filing of a petition. Employers would also be required to include in the voter list an employee’s name, telephone number, email address, physical address, work location, shift, and classification. Additionally, the rules would reduce the minimum time period between posting of the Board’s final notice and the election from three to two work days.
    Notably, the proposed rules would expedite the hearing process and “make clear that, ordinarily, resolution of disputes concerning the eligibility or inclusion of individual employees is not necessary in order to determine if a question of representation exists and, therefore, that such disputes will be resolved, if necessary, post-election.” Under the new rules, a hearing officer would be required to close a hearing if he or she concludes that “the only issues remaining in dispute concern the eligibility or inclusion of individuals who would constitute less than 20 percent of the unit if they were found to be eligible to vote.” NLRB board member, Brian Hayes, was the sole dissenter from the Board’s proposal. He contended that the new rules would “impose organized labor’s much sought-after ‘quickie election’ option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition.” He also noted his belief that the rules would “substantially limit the opportunity for full evidentiary hearing or Board review on contested issues.”

    Although Congress may seek to intervene with the NLRB to have it reverse course, the likelihood now is that the NLRB will adopt this proposed rule, the effect of which is predicted to take the average time between petition and election from its current 38 days to approximately 20 - 23 days. This will partially accomplish what was intended by the EFCA in that it will give employers less time to communicate with employees about the negatives of unions after a petition is filed and presumably boost the likelihood that a union could win an NLRB election. In 2009, when it appeared that passage of the EFCA was quite possible, we urged employers to modify their employee communications to include discussions of the negatives of unions even when there was no organizing, and to develop Rapid Response Teams which could react with prepared employee communications immediately when union organizing began. While the consequences of a short election cycle are not quite as dire, employers should consider at least developing a Rapid Response Team now. If employers do not engage in ongoing communication about unions as part of their regular Employee Communications Plan, at the very least, they need to be prepared immediately at the commencement of union organizing to roll out a solid communications strategy.
    The U. S. Department of Labor (DOL) is also proposing changes which would make it more difficult for employers to respond to union organizing. These involve restrictions on labor lawyers who advise employers during union organizing campaigns. Currently, if an employer’s attorney does not communicate directly with employees, but merely assists an employer with “legal” campaign letters and communication strategies, the attorney is not regulated. The proposed change is that any involvement by the employer’s attorney in suggesting or preparing campaign literature or other communications would make the attorney a “persuader” within the meaning of the law, and would require the attorney and his or her firm to file detailed reports, including reporting on their finances, to the DOL. If adopted, these regulations would require labor lawyers to determine whether to meet the burdensome requirements of the DOL in order to continue to assist their clients in organizing campaigns, or to abandon that type of work entirely. This may create a situation where employers cannot lean on their trusted advisors to do the kind of work that is needed in an organizing campaign.