As indicated in our two recent client alerts, the National Labor Relations Board (NLRB) has been extremely activist in promoting a pro-Union agenda. In fact, it wouldn’t be a stretch to refer to the agency as currently constituted as the “National Labor Relations Union.” Prior to this most recent activism, the NLRB had two primary functions: (1) to prevent and remedy unfair labor practices, regardless of whether committed by labor unions or employers; and (2) to establish whether certain groups of employees wanted union representation for collective-bargaining purposes. However, the NLRB’s recent measures indicate an intent to substantially deviate from its statutorily-mandated duties as an objective investigatory agency.
By way of reminder, when appointed to the 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 labor unions.
Since his appointment, which gave the Board a 2-1 democratic majority, Becker has attempted to use his currently unchecked authority (he was a recess appointment by President Obama and, as such, was neither confirmed nor approved by either party) to propose rules undercutting an employer’s ability to manage its workforce. The NLRB’s proposed rules placing more obligations and expense on employers are particularly troubling in light of the current economy.
In an attempt to implement its agenda, the NLRB has proposed several recent rules and regulations of which employers must be aware. Specifically,
1. The NLRB issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act (NLRA) as of November 14, 2011. However, on October 5, 2011, the agengy agreed to postpone implementation of the posting requirement until January 31, 2012. Private-sector employers whose workplaces fall under the NLRA will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the notice on those sites. The notice states, among other things, that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, refrain from any of these activities, strike and picket or choose not to do any of these activities. It also informs employees of their right to solicit during their non-work time, to be free of interrogation and discrimination related to union activities, and to wear union hats, buttons, tee shirts, and pins.
Penalties for employers who fail to post the notice may be severe. First, failure to post the required notice is an unfair labor practice itself. The second sanction is the tolling of the statute of limitations for filing an unfair labor practice charge against employers who fail to post the notice. The normal statute of limitations is six months, but it may be extended when no notice has been posted. Finally, the Board will hold that knowingly and willfully failing to post notices may provide evidence of unlawful motive in unfair labor practice cases.
Although the NLRB did not directly address the issue of whether an employer may post a notice of the company’s position at the same location, there appears to be nothing per se illegal about this practice; however, you should have legal counsel review such a notice prior to posting.
2. A proposed rule would significantly reduce the time period for a union election and impose substantially shortened timeframes for the production of documents. For example, employers 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. Moreover, the proposed rules would expedite the hearing process and 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.” The cumulative effect of the changes has been predicted to take the average time between petition and election from its current 38 days to approximately 20-23 days. This will obviously 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.
Ultimately, employers have a legitimate and substantial interest in NLRB rules and procedures which includes the right of the employer to communicate with its employees about unions. If this proposed rule becomes effective, a union may conduct an organizing campaign for weeks or months without an employer becoming aware of it, frame the election, communicate with employees and prepare for legal issues to the significant detriment of an employer.
Please be advised that if employers currently do not engage in ongoing communication about unions as part of their regular communications to employees -- DO IT NOW. Further, employers need to be prepared immediately at the commencement of union organizing to roll out a solid communications strategy.
3. Finally, the NLRB has proposed a drastic expansion of the definition of “persuasion” to include numerous common human resource and legal activities which would substantially impact current basic employer activities. With respect to restrictions regarding legal counsel, 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.
Significantly, the proposed rule also requires employers subject to this requirement to report receipts and disbursements of any kind “on account of labor relations advice and services.” Accordingly, there would be substantial new recordkeeping and reporting requirements for employers. To comply with these onerous requirements, potentially on every occasion an employer engages an attorney or a consultant, reporting would be required. Accordingly, the costs associated with compliance could truly be staggering.
Please contact a member of Barley Snyder’s employment group with any questions regarding this proposed legislation and for advice on a course of action to ensure legal compliance.
