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Two Newly Proposed Agency Rules Threaten to Hamper Employer Communications before Union Elections

Date: 6.21.2011

The National Labor Relations Board has formally issued proposed rule changes that, if adopted, will drastically expedite the union election process.  The employer community has anticipated the NLRB’s move to seek to expedite the representation election process.  At recent Congressional hearings, Chairman Wilma Liebman hinted that such action was under active consideration.

Among other things, the Board proposes the following changes to the current process:

  • Accelerate the initial hearing date following the filing of a representation petition;
  • Mandate expansive pre-hearing discovery of issues;
  • Significantly curtail the ability to litigate issues before an election;
  • Eliminate the right to file post-hearing briefs;
  • Bar pre-election requests to review regional decisions;
  • Require lists of eligible voters be filed within only two days; and
  • Provide the union with voters’ phone numbers, e-mail addresses, and more.

Approximately 95 percent of all representation elections are held in 56 days.  The new procedures, if adopted, could shave approximately 30 days.  Under these changes, it appears elections could be held in slightly over three weeks (or possibly less) from the filing of a petition.

This is a profound change.  It has been long recognized that the more opportunity employees have to learn about unions and collective bargaining, the less likely they are to vote for union representation.  The proposed changes would cut that time by 50 percent. The need for employers to promote preventive labor relations in advance of union organizing is more important than ever. 

Employers’ ability to communicate with their employees also may become more challenging.  It is no coincidence that the Department of Labor has proposed a new rule that would make more activity of attorneys, consultants, and employers publicly reportable.  The Labor-Management Reporting and Disclosure Act (LMRDA) requires reporting of arrangements, receipts, and expenditures derived from providing services called “persuader activity.”  Historically, attorney legal advice regarding lawful employer communications has been exempt from this LMRDA reporting requirement.  The DOL’s proposed rules would severely curtail this advice exception, rendering much of the advice provided by attorneys “reportable” under the law.  It is irrelevant that the employer’s communication is lawful.

For more than 50 years Jackson Lewis has counseled and advised employers with respect to their protected right to free speech and communication with their employees concerning the exercise of their rights to organize and bargain collectively.  Most companies and their law firms have fit within the legal advice exclusion over the years. This is likely to change if these new rules are adopted.

The impact of the proposed DOL rule will be to inhibit employers from effectively and lawfully communicating facts and opinions to employees prior to elections.  That, combined with the NLRB’s accelerated election procedure, will diminish greatly employees’ opportunities to obtain the information they need to make an informed choice in an NLRB election.

There is a 60-day public comment period for both proposals, followed by agency analysis and consideration, before final rules are promulgated.  The final rules are subject to court review.

Jackson Lewis attorneys will be working with the employer community to prepare comments to both rules and in any subsequent litigation.