06.22.2011 NLRB & US-DOL Issue Controversial Notices of Rulemaking

On the heels of the National Labor Relations Board’s controversial decision to prosecute the Boeing Corporation for building a new production facility in South Carolina, this week the Board issued a Notice of Proposed Rulemaking to amend its regulations in an effort it describes as an attempt to streamline its union election procedures.


In summary, the Board’s approach is aimed at streamlining and expediting the election process so that Union elections are conducted on a much more rapid timetable than has been customary over the last 75 years.  The projected time saving is accomplished mainly by postponing the litigation of various voter eligibility and unit composition issues until after the vote has occurred.


Somewhat surprisingly, the NLRB is also pursuing this rulemaking on an expedited basis; it hopes to have the rule published by the end of this summer after only a single hearing and 60-day public comment period.  The Board members themselves are somewhat divided on the need for any changes to the rule.  There is a sharp dissent to the proposed rule written by NLRB member Brian Hayes.  While the proposed rule does not establish a deadline for the holding of a Union election after a petition is filed, the Board’s approach appears to be calibrated toward scheduling Union elections within 10 to 21 days after the filing of an election petition.  Heretofore, most NLRB elections were held 40 to 50 days after the filing of a petition, depending upon the need for a hearing before the election to resolve issues such as voter eligibility.


Some of the specific proposed changes to the Board’s election procedure include the following: 

  1. Unions will be required to serve election petitions on employers contemporaneously with the filing with the NLRB and will be required to submit their “showing of interest” (usually authorization cards from employees) at the time the petition is filed, rather than within 48 hours as permitted by current practice.


  2. Regional Directors of the NLRB’s field offices will set hearings in representation cases to begin seven days after the service of a notice of hearing, which will generally be issued within a day after the filing of an election petition.  While some Regional Directors already follow this practice, adding this requirement will make the Board’s procedure on this point more uniform, according to the NLRB.  Parties to the representation case will now receive a “statement of position form” replacing the former “commerce information questionnaire” in use for several decades.  With this form, each party must supply its position on a number of issues affecting the election, including the NLRB’s jurisdiction in the case, the appropriateness of the unit requested and the existence of any bar to conducting an election.  The parties will also be required to describe any proposed exclusions from a voting unit and offer their views on the type of balloting to be conducted as well as the date, time and place of voting.  


  3. At the representation hearing, parties will be precluded from raising any issue or presenting any evidence on any issue that has not been specifically raised in this statement of position, except for challenging the NLRB’s jurisdiction over the case.


  4. The proposed rule will eliminate pre-election review of the Regional Director’s decision on setting the election and defer all such requests for review until after the election is held.  


  5. The timing and format of the Excelsior List (voting eligibility list) will change dramatically.  Under the proposed rule, the employer will be required to supply the voting list, in electronic form if it is able, within two days after a stipulated election agreement or a Regional Director’s Direction of an Election, rather than within the seven-day period now permitted by the Board.  Further, the Excelsior list, which formerly obliged the employer to supply merely names and physical addresses, will expand to require phone numbers and email addresses, if available, along with work location, shift, and job classification for each employee.

In what is either an odd timing coincidence or an obvious example of coordinated strategy between the NLRB and the United States Department of Labor, within only one day, the DOL published its own Proposed Notice of Rulemaking related to regulations implementing the Labor - Management Reporting and Disclosure Act (LMRDA).  This statute regulates the activity of “persuaders” who assist employers in defining and disseminating their message to employees concerning the employers’ position on the prospects of unionization.  The statute has been in effect since 1959 and has long provided that third-party labor consultants who are engaged in direct communications, whether speeches or written correspondence, with employees in the voting unit are obliged to disclose to the DOL in a yearly report the nature of their activities and the fees derived from these services.  For 50 years, the LMRDA has exempted attorneys who merely advised employers on their rights and obligations in the NLRB’s election process so long as those attorneys are not involved in directly communicating with eligible voters.


In the proposed rule, the DOL seeks to expand the definition of “persuader activity” to include both direct and indirect efforts to persuade employees concerning their rights.  This expansion threatens to encumber traditional legal advice to clients with the burden of disclosing what is otherwise protected by the attorney-client privilege.  The change in the regulation is accomplished principally by adjusting the meaning of the terms “advice” and “persuader activity”.  Now, the advice exemption will be limited to oral and written recommendations regarding a decision or a course of conduct.  In contrast, persuader activity will encompass even an attorney providing material or communications to an employer on what might be read in a speech or published in a pamphlet or flyer to employees, even if it has merely been prepared in draft form for the employer to finalize and publish itself.  Under the proposed rule, a consultant or lawyer must report to the DOL if he or she engages in any conduct, actions or communications that use employer representatives to persuade employees.  For example, a report would be required if the lawyer plans, directs, or coordinates the activities of employer representatives, or provides material to them even for their own dissemination or distribution to employees.  Further, drafting or implementing policies for the employer that have the object of directly or indirectly persuading employees would also trigger a reporting obligation. 


On the other hand, no report will be required concerning an agreement to exclusively provide advice to an employer, such as counseling employer representatives on what they may lawfully say to employees, insuring a client’s compliance with the law or providing guidance on NLRB practice or legal precedent.  Essentially, what this calls into question is who authors the employer’s campaign presentation materials.  Commonly, lawyers or other third-party consultants will draft a proposed speech subject to the client’s approval and the client’s actual presentation.  It appears that the DOL is intent on capturing this as “persuader” activity.  It would not be persuader activity under the new rule if the employer wrote the speech itself subject only to an attorney’s review and comment.  Whether this is a realistic way for an employer to manage its message in a union campaign is open to question. 

For more information about this topic, please contact the author or any member of the Williams Mullen Labor & Employment Team.

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