NLRB begins streamlining of NLRB election process

Posted by Brendan Fitzgerald on December 09, 2011

By Brendan Fitzgerald and Miriam Rosen

The National Labor Relations Board made its commitment to “streamlining” the union representation election process clear in June 2011 with its controversial, pro-labor Proposed Rule for overhauling the union election system.  So, it wasn’t too surprising when the Board recently voted for a resolution streamlining parts of the union election process.   What was less expected, however, was that the Board took a piecemeal approach to the overhaul process by adopting a resolution focused only on limiting the litigation that frequently surrounds—and often delays--union elections.

Union elections frequently involve litigation over various aspects of the process, including whether to have an election, the appropriate bargaining unit, campaign behavior, election procedures and election results.  Unions have long claimed that such litigation is used by employers as a tactic to delay elections and possible bargaining obligations.

At a public meeting on November 30th, the Board seemed to accept the unions’ complaints and cut right to the heart of the perceived delay tactics.   Rather than adopting the Proposed Rule in its entirety as contemplated this summer, which would likely have caused a political firestorm, this pro-labor Board voted  2-1 along-party-lines for a narrower resolution.  Essentially, the resolution will curtail the ability to engage in most pre-election Board review and will also limit post-election appeals. Ultimately, the effect of these changes will result in a shortened election period with less time for employers and employees to consider important issues related to union representation.

Specifically, among other things, the resolution would:

  1. Allow a hearing officer to limit the evidence presented in hearings to determine whether to have an election;
  2. Restrict pre-election hearings to resolving only whether a "question of representation" exists;
  3. Allow a hearing officer to determine whether to permit post-hearing briefing;
  4. Limit appeals, including certain pre-election rulings;
  5. Attempt to end delays, even if due to a pre-election appeal; and
  6. Make Board review of certain post-election disputes discretionary.

The full language of the NLRB’s resolution can be found here. 

Providing an Explanation of the Resolution, Board Chairman Mark Pierce stated that the resolution will reduce what it perceives as “unnecessary litigation in election cases by the Board.”  In contrast, the lone Republican member of the Board, Brian E. Hayes, opposed the resolution and commented that it “will ultimately cause harm to the agency and the constituencies we serve.”

While the more controversial aspects of the Proposed Rule were not included in the resolution, this may not be the end of the story for employers. The Board also explained that the remaining portions of the Proposed Rule have not yet been rejected.

A majority of the Board must still approve the resolution before it can take effect.  With the Board’s current two member majority’s union-related backgrounds, this is expected to be little more than a rubber stamp.

The Board’s action is a reminder to employers that they should make union avoidance a priority in light of this new resolution and other changes that the Board will likely try to push through before the 2012 Presidential election. Employers should contact counsel to understand the changes to the election process and prepare for other likely changes.

The Times They Are A-Changin': The Obama NLRB issues proposed new rules to revamp the union election process

Posted by Todd L. Sarver on June 30, 2011

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.

The Death of Employer Free Speech: Labor relations and the proposed rules by the DOL and the NLRB

Posted by Todd L. Sarver on June 30, 2011

In a one-two punch, the DOL and the NLRB issued notices of proposed rulemaking that together seek not only to hamstring employers in communicating with employees during a union organizing effort, but also to hamstring employers in communicating with employees about unions at all. These efforts are little more than a thinly veiled attempt to circumvent Congress and salvage the Obama administration’s support from organized labor – particularly following the Employee Free Choice Act debacle. Indeed, perhaps the “transparency” repeatedly espoused in the notices would be a little more credible if the agencies just came clean and admitted their role as political pawns.

The net effect of the proposed regulations is to expedite union elections, thereby providing a further advantage to organized labor (which is already winning over 50% of elections), and to effectively kill what an employer can actually do in the truncated time they would have. With a current median election time of 38 days from the date of petition (with 95% of elections occurring within 56 days), the NLRB’s proposed rules realistically seek to reduce that time period to not much more than 20 days. The purpose of the quickie election, of course, is to allow the union to propagandize its target audience, file a petition and hold the election immediately – before employees can be educated on the fact that there is a view other than the union’s.

As if that were not enough, the DOL’s proposed rules would then create a bureaucratic marathon of red tape if an employer is so bold as to attempt to educate its employees about the consequences of joining a union (in whatever little time they would have). Assuming an employer enlists the services of an attorney or a consultant, virtually any effort to educate its workforce would require public disclosure of the nature of the advice and the fees paid by the employer. The proactive or progressive employer fairs no better. If an employer attempts to implement a policy pertaining to the employer’s position on unions (or arguably any personnel policy) and seeks the input of attorneys or consultants in doing so, the proposed regulations require disclosure of that advice and the cost. Likewise, if an employer utilizes employee surveys or forms employee committees (and enlists attorneys or consultants, or purchases such materials) that too must be disclosed to the public. Interestingly, there does not appear to be any similar requirement by organized labor if it conducts training on how to organize.

Employers and unions and governments alike rely on consultants and advisors on day-to-day issues for everything from taxes to environmental issues to financing and employee relations. Yet, employer communication regarding the right not to organize may all of a sudden become one of the most regulated forms of expression in this country. All the self-righteous rhetoric and rationalization set forth in the proposed rules cannot veil the political agenda at issue.

Jump Start My Heart - The Obama administration goes on the offensive to appease organized labor by proposing to amend the "persuader rule"

Posted by Todd L. Sarver on June 27, 2011

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.

Boeing and the Machinists: What we have here is a failure to communicate

Posted by George Asimou on June 10, 2011

An Administrative Law Judge will convene a hearing on June 14, 2011 in the highly politicized labor dispute between the Boeing Company (Boeing) and the Association of Machinists and Aerospace Workers (Machinists). In April, the Acting General Counsel for the National Labor Relations Board filed a Complaint against Boeing, alleging that the plane maker’s decision to assemble its 787 Dreamliner aircraft at a new (non-union) facility in North Charleston, South Carolina rather than an existing (unionized) facility in Everett, Washington was in retaliation for a history of strikes by the Machinists at the Washington facility and therefore violative of the National Labor Relations Act. Boeing maintains that the decision to place a second assembly line in South Carolina was based upon the Company’s legitimate interest in seeking out a favorable business environment for new production.

boeing0009 from morgueFile.JPGThe dispute has received wide coverage as a flashpoint between right-to-work advocates, organized labor, and the political actors that represent both constituencies. Management-side advocates have loudly decried the NLRB’s Complaint as “the first time a federal agency has intervened to tell an American company where it can and cannot operate a plant.” The NLRB’s Office of the Acting General Counsel issued a fact sheet countering that Boeing executives have made what the Acting General Counsel views as a series of statements indicating that Boeing was drawing a straight line between the decision to place the assembly line in South Carolina and frequent strike activity at the Washington facility. Machinist members at the Everett, Washington facility have engaged in strike activity regularly and with greater frequency in recent years, including in 2005 and 2008, causing costly delays in production.

Politics aside, the current dispute highlights the importance of message discipline as employers deal with unionized workforces. Neither the NLRB’s Acting General Counsel nor the Machinists have taken the position that Boeing does not have the general right to maintain a production line in South Carolina and, as a practical matter, Boeing will eventually produce Dreamliners in South Carolina. At issue is Boeing’s motivation in assembling Dreamliners in South Carolina. Statements by Boeing management noting the need for production stability due to, at least in part, frequent strike activity by the Machinists have landed Boeing in the NLRB’s crosshairs.

Employers with unionized workforces have broad rights (and, in fact, an obligation) under the law to make business decisions in a company’s best interests. As the Boeing dispute illustrates, compliance with labor laws will often turn on the clarity with which those decisions are communicated to incumbent unions.

What your handbook says could hurt you

Posted by Todd L. Sarver on May 17, 2011

In Jurys Boston Hotel-356 NLRB No. 114.pdf, the National Labor Relations Board (NLRB) recently decided that regardless of whether or not an employer enforces its handbook policies, the mere existence of a policy deemed unlawful by the NLRB may have a significant impact. Indeed, the NLRB served up a not so gentle reminder of the importance of regularly reviewing and updating your employment policies.

Pursuant to a neutrality agreement, the employer recognized the union, UNITE HERE, and signed onto a master contract in 2004. In 2006, following the expiration of the master contract, an employee filed a petition for a decertification election.

Six weeks after the petition was filed, and nine weeks before the election, the union filed an unfair labor practice charge alleging that seven rules in the employer’s handbook were unlawful. Included among the alleged unlawful rules were: (a) a non-solicitation/non-distribution rule; (b) a non-loitering, non-use of hotel premises for personal use policy; and (c) a grooming policy that prohibited the wearing of emblems, buttons, or badges not part of the uniform.

Since the hotel had opened in 2004, the employer issued the handbook, including the disputed policies to all employees. It was undisputed that the employer did not enforce the disputed rules. Further, the union received copies of the handbook as part of the new hire orientation. At no point prior to the filing of the charges, however, did the union object to the handbook.

Three weeks after the union filed the charges, the employer issued a memo to its employees explaining that it had no intention of interfering with employees’ rights under the National Labor Relations Act (NLRA) and amending several of the rules.

The union lost the election by one vote and filed objections to the election based upon the employer’s maintenance of the alleged unlawful work rules. A hearing was held and the NLRB hearing officer ruled that the maintaining of rules that were not enforced did not interfere with the election.

In a 2-1 decision (Member Hayes, dissenting, again), the NLRB overturned the hearing officer’s decision and ruled that the mere maintenance of the unlawful rules tended to interfere with employee free choice, and therefore tainted the election – even though they were never enforced; even though the union had known of the rules for over two years before it objected; and even though the employer attempted to cure any defects three weeks before the election took place. The NLRB ordered a second decertification election.