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In the face of the failure of the Employee Free Choice Act, the Liebman-led NLRB has taken it upon itself to overhaul the union election process.  According to the NLRB, the changes will “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representations,” despite the fact that in FY 2010, the median timeframe for conducting initial elections was 38 days and 95% of all elections were conducted within 56 days.  As Member Hayes said in his dissent, “In truth, the ‘problem’ which my colleagues seek to address through these rule revisions is not that the representation process takes too long.  It is that unions are not winning more elections.” 

The proposed changes to the current election process include:

The Petition and Pre-Hearing Process

• Petitions would be filed electronically.
• At the time of filing, the union would have to serve the petition on the employer.
• At the time of filing, the union would have to submit its showing of interest in support of the petition.  The showing of interest must demonstrate that a “substantial number of employees wish to be represented” (it’s unclear what happened to the 30% requirement for RC cases; other petitions such as RD maintain that requirement; thus, it is equally unclear what the proposed “substantial number” language means).
• At the time of filing, the union would have to also file a Statement of Position (discussed below)
• The possible use of “electronic signatures” by employees to show interest is left open for consideration.
• The hearing date would be set 7 days after the petition date.
• The current “Notice of Election” issued at the time of the notice of hearing would be changed to an “Initial Notice to Employees of Election” and would be required to be posted.

Statement of Position

• The union at the time of filing a petition, and the employer, no later than the hearing date, would have to submit a Statement of Position.
• The Statement of Position would replace the Commerce Questionnaire.
• The employer would be required to include:  (a) a position on the NLRB’s jurisdiction; (b) the appropriateness of the petitioned-for unit; (c) the existence to any bar to conducting the election; (d) any proposed exclusions from the petitioned-for unit (by name of person, job classification and reason); (e) position on the type of balloting; (f) position on the date, time and place of the voting; and (g) designation of a representative for service.
• In addition to the Statement of Position, the employer would have to include a list of all individuals employed in the petitioned-for unit, including work location, shift and job classification for each worker (unless the employer contends the petitioned-for unit is not appropriate, in which case, it must submit a list of employees in “the most similar unit the employer concedes is appropriate”).  The list filed with the Region must also include the employees’ contact information – address, telephone number and e-mail.
• Failure to submit a Statement of Position would preclude a party from “raising any issue, presenting any evidence, cross-examining any witness concerning any issue, and presenting argument concerning any issue” that the party failed to timely raise in its Statement of Position. 
• Eligibility or exclusion of individual employees would not be waived and may be addressed through the challenge process (it is unclear how this does not run afoul of the Act’s requirement that the Board determine the scope of a unit before an election).
• If eligibility and/or exclusion issues exceed 20% of the petitioned-for unit, a hearing would be conducted regarding the issues.
• The Statement of Position would be unnecessary if the parties enter into an election agreement.

Hearings

• The NLRB’s goal is to minimize any pre-election hearings.
• As discussed above, hearings regarding employee eligibility or exclusion would be deferred to the challenge process unless they exceeded 20% of the petitioned-for unit.
• Hearings would be required to continue day-to-day absent extraordinary circumstances.
• Pre-election Board review would be eliminated, thus the prior restriction of setting an election no sooner than 25 days after a direction of election would be eliminated.
• Briefs could be filed only with permission of the hearing officer; the Board does not believe that briefs are needed in every case.
• The Regional Director could direct an election to take place with a decision to follow, no later than the tally of ballots (that is, a hearing does not necessarily mean more time before an election).
• A Final Notice of Election would still have to be posted (and sent electronically, if that is a customary means of communication), and would be transmitted to the employees electronically by the Board where they have e-mail addresses.
• The Final Notice would be required to be posted 2 days before the election (instead of 3 days).

Excelsior List

• In addition to names and addresses, the employer would have to provide telephone numbers, e-mail addresses (it is unclear whether work or home or both), work location and shift for each employee.
• The employer would have to provide the list in electronic format (it is unclear whether .pdf is sufficient).
• The employer would be required to serve the list on the union and the Board at the same time.
• The list must be served within 2 days (instead of 7 days) of entering the election agreement or the direction of election.

Post-Election

• All requests for review would be postponed until after the election.
• If objections are filed, the objections and the evidence would have to be submitted in 7 days.

Blocking Charges

• The Board has invited comments on whether it should do anything to address organized labor’s abuse of blocking charges, and poses several questions to that effect, but does not propose a rule. 

The Effects and Concerns for Employers

• Stipulated elections could be conducted in about 20 days from the date of the petition.
• Disputed elections could be conducted as soon as 30 days from the date of the petition.
• The shortened time frame results in severe limits on how the employer can educate employees about their decision and as a result, employees are deprived of the opportunity to make informed decisions.
• There appears to be significant due process issues whereby an employer has 7 days to preserve every legal issue or it is forever waived.
• Certain provisions of the proposed rules appear to be inconsistent with the Act.
• Because virtually all of the litigation is shifted to post-election, employers will be put in a perpetual “damned if you do, damned if you don’t” situation if they lose the election, but challenge the results, and make changes to terms and conditions of employment in the interim.

Interested parties have 60 days to file comments.  A public hearing is set for July 18 and 19.

For well over 40 years, the rule for labor consultants and management attorneys has been that if those individuals deal directly (i.e., face-to-face) with an employer’s employees in connection with labor relations matters, then the employer must fill out and file with the United States Department of Labor (DOL) an LM-10, and the attorney or consultant must fill out and file an LM-20.  In contrast, consultation with the employers and their managers about the best way to communicate with rank-and-file employees was deemed “advice” and not subject to disclosure on the LM-10 and LM-20 forms.

In its June 21, 2011 proposed rule modifications, the DOL’s Office of Labor-Management Standards embarked on a mission to require employers and their advisors to disclose to the public the details of their consultations relating to labor relations, including those consultations with employers and their managers, as well as direct dealings with rank-and-file employees.  In doing so, the DOL concluded that the regulation has not been properly applied.  The DOL states that it does not intend to infringe upon the attorney-client privilege, and parties would be able to limit their descriptions to preserve the privilege.

According to the DOL, “advice” means (or should have meant all along) an oral or written recommendation regarding a decision or a course of conduct.  By way of example, the DOL suggests activities such as telling an employer what it may or may not say, advising an employer on compliance with the law, providing an employer guidance on NLRB practice and procedure, or representation of an employer in proceedings constitute advice.  So far, so good.

The DOL then virtually erases the line between advice and persuader activity by re-categorizing other activities traditionally deemed advice as reportable persuader activity.  The new LM-20 form will have a checklist of activities that are deemed persuader activity, as opposed to advice, when it comes to persuading employees about their right to (or not to) organize:

• Drafting, revising, or providing written materials for presentation, dissemination, or distribution to employees
• Drafting, revising, or providing a speech for presentation to employees
• Drafting, revising, or providing audiovisual or multi-media presentations for presentation, dissemination, or distribution to employees
• Drafting, revising, or providing website content for employees
• Planning or conducting individual or group employee meetings
• Developing or administering employee attitude surveys concerning union awareness, sympathy, or proneness
• Training supervisors or employer representatives to conduct individual or group employee meetings
• Coordinating or directing the activities of supervisors or employer representatives
• Establishing or facilitating employee committees
• Developing personnel policies or practices
• Deciding which employees to target for persuader activity or disciplinary action
• Conducting a seminar for supervisors or employer representatives

The comment period for the proposed rule is 60 days from June 21.

In an eagerly anticipated opinion, the U.S. Supreme Court issued its decision in Wal-Mart v. Dukes today. The Court held that insufficient proof existed to allow certification of a class of more than one million women in a sex discrimination suit against Wal-Mart. The Court ruled only on the procedural issue of whether a class should be certified and not on the merits of the plaintiffs’ discrimination claims.

In Wal-Mart, the plaintiffs sought certification of a class of over one million women claiming that Wal-Mart had a companywide policy of discriminating against women in pay and promotion. The plaintiffs initially sought to include women who were not even employed by Wal-Mart when the lawsuit was filed in 2001. The Court of Appeals for the Ninth Circuit allowed certification of a narrowed class of women who worked at the company at the time of the 2001 suit. Wal-Mart appealed that decision arguing that the plaintiffs could not show that the claims of the over one million women were sufficiently similar to support certification as a class.

A majority of the Court agreed with Wal-Mart’s argument holding that the plaintiffs provided “no convincing proof of a companywide discriminatory pay and promotion policy.” The Court found that without “some glue holding” the claims together, it would be impossible to say that the claims arose out of a common employment policy.

For the first time in over a decade, the Court’s opinion provides guidance on the types of claims that can be certified as a class. To pursue a class claim, the individuals must have a truly common legal basis for their claims. For employers being hammered with class action claims, the Supreme Court’s Wal-Mart decision is expected to have broad implications for future class discrimination claims. We will continue to analyze the implications of this case and provide further updates.

Administrative agencies, the EEOC and NLRB included, often view their subpoena powers broadly – sometimes in the estimation of employers and their counsel, too broadly. A recent Pennsylvania federal court case took a narrower view.

In EEOC v University of Pittsburgh Medical Center (UPMC).pdf, the district court for the Western District of Pennsylvania ruled that an administrative subpoena the EEOC issued the University of Pittsburgh Medical Center was a “fishing expedition” and denied the application for enforcement of the subpoena.

The dispute stemmed from an Americans with Disabilities Act (ADA) charge filed against a nursing home employer, Heritage Green, regarding an employee it discharged after the employee exhausted available leave. Heritage Green is a subsidiary of UPMC.

The EEOC sent UPMC a request for information seeking the identity of all employees corporate-wide who had been terminated pursuant to leave of absence or disability policies. When UPMC refused, the EEOC issued a subpoena for the information. UPMC filed a motion to revoke or modify the subpoena.

The court stated that, while the EEOC has broad subpoena power, that power is not without limits. The court concluded that the EEOC’s subpoena “overreached” and that the information sought could not be deemed relevant to the charge.

The court also somewhat chastised the EEOC for not doing anything to otherwise investigate the charge, or to more narrowly tailor the information sought. The EEOC had not made any effort to determine whether an individual violation occurred before launching an investigation into an alleged systematic violation.

Most state and federal agencies have been increasingly aggressive in recent years regarding their use of subpoena power. While employers should proactively engage administrative agencies to avoid potentially costly subpoena disputes, employers also should carefully review information sought, both informally and through subpoenas, to ensure they are not needlessly opening their operations to unnecessary scrutiny.

On Thursday, June 9th, Ohio’s Supreme Court held that an employee, who is terminated after sustaining a work-related injury, though prior to filing a workers’ compensation claim, may still pursue a workers’ compensation retaliation claim against his former employer. This case arose as Ohio’s Workers’ Compensation Retaliation Statute, when read in conjunction with Ohio’s applicable case law, left a gap in coverage for employees who sustained an industrial injury, but were terminated prior to filing a workers’ compensation claim. The Court filled this gap with what it called “a common-law tort claim for wrongful discharge in violation of public policy”. Thus, the Court attached the right to pursue a workers’ compensation retaliation claim to the work-related injury and not the filing of the workers’ compensation claim.

Fortunately, though this case broadened the application of Ohio’s workers’ compensation retaliation protections, the Court limited any recovery under such claim to those remedies provided in Ohio’s Workers’ Compensation Retaliation Statute:

…relief may be granted shall be limited to reinstatement with back pay, if the action is based upon discharge, or an award for wages lost if based upon demotion, reassignment, or punitive action taken, offset by earnings subsequent to discharge, demotion, reassignment, or punitive action taken, and payments received pursuant to section 4123.56 and Chapter 4141 of the Revised Code plus reasonable attorney fees.

Employers should be mindful of this when terminating an employee who it knows sustained a work-related injury, irrespective of whether a workers’ compensation claim has been filed.