NLRB and U.S. DOL Propose New Rules Affecting Union Representation Elections and Persuader Reporting

On June 22, 2011, the National Labor Relations Board (“NLRB”) published proposed rule changes in the Federal Register, which, if enacted, will dramatically accelerate the timeframes for union representation elections. One day earlier, the U.S. Department of Labor’s Office of Labor-Management Standards (“DOL”) published proposed rules to narrow the interpretation of the term “advice” as it pertains to the persuader reporting requirements set forth within Section 203 of the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”). Together, these proposed changes create new burdens for employers who wish to communicate with employees about collective bargaining and workplace unionization. If enacted, the practical result of these proposed changes (whether intended or not) is that they will create tactical advantages for organized labor that will in turn help unions win an increased number of representation elections.

The NLRB Proposes “Quickie” Elections

Under current NLRB practice and procedure, employers typically have several weeks between the date that a petition for an election is filed and the actual date of the union representation election. Employers will often use this period to communicate with their employees and, in accordance with certain restrictions, campaign in opposition to the union. The NLRB’s proposed rules, however, seek to streamline the NLRB election process and in effect shorten the amount of time for employers to mount such an opposition campaign. Under the NLRB’s proposal, elections that once took weeks could now be held within 10 days.

In a strongly worded dissent, Brian Hayes, a member of the NLRB, objected to the proposed rule changes, noting that employers will not be provided with sufficient time to communicate their position on unionization and collective bargaining. Specifically, Member Hayes stated:

What is certain is that the proposed rules will (1) substantially shorten the time between the filing of the petition and the election date, and (2) substantially limit the opportunity for full evidentiary hearing or [NLRB] review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct. Thus, by administrative fiat in lieu of Congressional action, the [NLRB] will impose organized labor’s much sought-after ‘quickie election’ option, a procedure under which an election will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its view about collective bargaining.

In total, the NLRB has proposed a significant number of changes to its rules concerning representation. For purposes of clarity and convenience, we have summarized the most significant changes and contrasted them with the current rule in the below table:

Current Procedures
Proposed Procedures
Petitions for NLRB elections and other election-related documents cannot be filed electronically. Rather than by mail or personal delivery, election petitions, election notices, and voter lists may be transmitted electronically.
The amount of time for a pre-election hearing varies by NLRB Regional Office. Pre-election hearings will be held within 7 days of the filing of an election petition with the NLRB (absent special circumstances).
No requirement for the parties to identify issues in dispute prior to the pre-election hearing. The employer must serve a “statement of position” prior to the start of the pre-election hearing.The statement of position would include the employer’s position on disputed topics (e.g., the NLRB’s jurisdiction, appropriateness of the bargaining unit sought; and the type, date, and location of the union representation election).
A list of voters is not produced until after the Regional Director has directed an election. The party not seeking the election (usually the employer) will be required to file and serve a “preliminary list of voters” which includes names, work location, shift, and classification by the start of the pre-election hearing.
Parties can challenge voter-eligibility issues at the pre-election hearing. Litigation of eligibility issues raised by the parties that involve less than 20% of the bargaining unit would be deferred until after the election.
The parties may request the NLRB review the Regional Director’s pre-election rulings before the election, and waive their rights to seek review if they do not do so. Elections are routinely delayed 25-30 days in order to allow the parties to seek NLRB review. The parties would be permitted to seek review of the Regional Director’s rulings through a single post-election request.
The NLRB itself is required to decide most post-election disputes. The NLRB would now have discretion to deny review of post-election disputes.
The final voter list (also known as the “Excelsior List”), which contains names and home addresses, must be provided within seven days after the direction of an election. The final voter list (“Excelsior List”) would now be provided within two workdays of the direction of an election. The list will also be expanded to include phone numbers and email addresses (where available).


The U.S. DOL Seeks To Increase Persuader Reporting

In addition to the changes proposed by the NLRB, the DOL has proposed changes to its interpretation of the persuader reporting requirements set forth in Section 203 of the LMRDA. Section 203 currently requires employers (subject to limited exception) to disclose to the U.S. DOL (via Form LM-10) any arrangement that they have made with a third-party to persuade their employees as to their collective bargaining rights, directly or indirectly, or to obtain information about the activities of a labor organization involved in a labor dispute with the employer.

However, Section 203(c) of the LMRDA provides an exception to the reporting requirement for “advice” given to the employer. In the past, the U.S. DOL has construed this exception broadly to exclude agreements or arrangements where the consultant does not have any direct contact with employees. Accordingly, if a consultant or lawyer were to draft or review communications (e.g., documents, letters, speeches) presented to employees during an organizing drive or in anticipation of an NLRB election, such conduct was deemed “advice,” and therefore there was no need to inform the DOL.

However, should the DOL’s proposal become effective, the term “advice” shall be limited to “oral or written recommendation regarding a decision or course of conduct.” On the other hand “persuader activity” shall include a consultant providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object (directly or indirectly) to persuade employees concerning their right to organize and bargain collectively. All agreements for persuader activities would need to be reported, even if a consultant/lawyer did not have direct contact with employees.

Accordingly, if lawyers or consultants draft, review, or analyze employee communications, or are otherwise involved in a campaign in opposition to a union’s organizing or collective bargaining efforts, such actions may now trigger the reporting requirements under Section 203. Moreover, these consultants and lawyers will also likely be required to file their own disclosures with the U.S. DOL (via revised Forms LM-20 and LM-21). Form LM-21 is particularly problematic as it requires disclosure of receipts for all labor relations advice or services provided to all employers during the year (regardless of when that advice is related to persuader activity). The primary effect of these disclosure requirements is to obfuscate employers in their efforts to seek advice in connection with a union organizing drive or election.

The NLRB and DOL proposals are not yet effective. In both instances, the agencies have asked for public comments on the proposals within 60 days of publication. The attorneys in the Gibbons Employment & Labor Law Department will be following these developments closely and will update the Employment Law Alert when new information becomes available. If you have any questions regarding the rule changes proposed by the NLRB and the DOL, or the impact that these changes may have on your business, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.

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