On June 20 and 21, 2011, the Federal government (through the U.S Department of Labor (“DOL”) and the National Labor Relations Board (“NLRB” or “Board”) respectively) announced proposed rules that seek to strip away any significant means employers have to mount an effective defense to unionization drives. Given how tough it is for employers to win union elections under the current system, one can only wonder what problem the government seeks to fix with these proposed rule changes. It seems that the old adage “if it ain’t broke, don’t fix it” does not apply where the government and private sector unionization is concerned. Through these proposed rules, announced by two federal agencies a mere day apart, private employers are being sent a clear message that the federal government wants to help unions win more elections. Employers would be wise to heed this message and prepare accordingly.
I. Current System
a. Time Frame of Union Elections
Under the current system, unions win roughly 65% of elections. Recent statistics show that pre-election hearings are noticed and completed within just 13 days. In addition, on average, elections are typically conducted within 38 days. In 2010, 95% of all initial elections were conducted in less than 60 days.
b. Practical Realities of the Current Election Process
Considering the fact that only 6.9% of private employees are unionized (a historic low) this article assumes that most of its readers have minimal familiarity with NLRB union election procedures. As such, this section represents a basic summary of the existing practice in NLRB representation elections.
When an experienced union targets an employer for organizing, it can speak to the employees of the target employer for months before the employer even suspects anything is happening. This can happen offsite at local restaurants, parks, and bowling alleys, etc. It can also happen onsite where unions send “salts” to get hired by the employer by posing as real job applicants. During this time, current law permits union organizers to make false promises to the employees regarding what the employees can expect if they vote for union representation. As such, it is not unheard of for union organizers to promise large pay raises, boosted health care benefits, retirement plans, and removal of unpopular supervisors. Unions may also misrepresent to employees the significance of employees signing union authorization cards.
Once the union has signed authorization cards from 30% of the employees in the targeted bargaining unit (the specific group of employees the union wants to represent), the union can file a petition for an election to be conducted by the NLRB. When the NLRB reviews the union’s election petition and is satisfied that the union has a sufficient showing of interest (30%), it tries to work out an agreement between the parties for the scheduling of an election. If an agreement is not made, the Board schedules a pre-election hearing to be held usually within two weeks. When the employer gets notice of the pre-election hearing, they rush to find competent labor counsel. Labor counsel will assist the employer in identifying issues to be raised at the hearing, and begin advising the employer of the NLRB election process, election campaigns, and compliance. At the hearing, parties are expected to raise any issues with respect to voter eligibility, and the unit composition (i.e., is the group the union seeks to represent appropriate? or should it be larger/smaller?).
After the pre-election hearing, the NLRB will direct an election be scheduled. The average time it takes for an election to be conducted after a petition is filed is 38 days. For the employer, it is a very intense 38 days, filled with countering union misinformation, and planning, coordinating, and executing its own counter-union election campaign, all while still trying to run its core business.
II. Proposed Rules
A. The NLRB Proposed Rules: “Ambush Elections”
Under the proposed rules issued by the NLRB, the union election process, which currently takes an average of 38 days to run its course, could be cut down to between ten to twenty-one days. Some of the highlights of how the proposed rules reduce the pre-election period include:
- Elections and petitions may be filed electronically;
- A significant restriction of the opportunity for pre-election full evidentiary hearing or NLRB review of contested issues involving, among other things, appropriate unit, and voter eligibility;
- Reduction of the time for an initial hearing from 14 days to 7;
- Employers will be required to submit a list of issues it wishes to raise by no later than the day of hearing, or risk waiving them. That is, the employer has only 7 days to select competent counsel, and research and raise any issues that may be relevant to the employer’s position;
- Two days after an election has been scheduled, an employer would be required to submit to the union a final list of eligible voters (down from 7), which must include mailing addresses, phone numbers, and email addresses where available;
- Post-election hearings will be scheduled 14 days after the votes are tallied;
One of the most significant changes that the proposed rules make is that all election-related litigation will be shifted to the post-election period. In addition, the act of reducing the time for an initial hearing will seriously prejudice employers. Needless to say, in just 7 days, employers will be hard-pressed to find and select competent counsel and formulate any meaningful strategy, let alone conduct even preliminary research in anticipation of any issues that may arise.
The practical effect of these rules would be to continue to allow unions unlimited time to organize and persuade employees to support them, often through misinformation and false promises, while reducing an employer’s time to respond to as little as 10 days. When one considers that current law permits unions to promise employees the world in exchange for their support, and prohibits employers from doing the same, it is not hard to see why a 10-21 day period is woefully insufficient time for an employer to effectively counter a union’s election campaign propaganda. Union organizers typically campaign for months by providing employees with misinformation and false promises. A properly conceived employer election campaign involves researching issues of concern to the workforce, countering inaccurate union propaganda, and fashioning lawful communications that effectively convey the employer’s position on various aspects of unionization. This can be a time consuming undertaking, particularly for smaller employers who typically do not have labor counsel on retainer, or even have contact information for one.
While technology has arguably made it easier for employers to communicate with their employees, it has also increased the number of channels that an employer must communicate through, including e-mail, websites, social media, podcasts, and DVDs. Effectively and lawfully communicating through these various channels takes time to plan in the context of countering a union election campaign, and often involves looking at various third party offerings since election campaigns simply do not allow for much production time, and employers usually do not have the expertise to produce them in-house. While unions have as much time as they want or need to talk to employees, the proposed rules would force employers to try to cram all of their preparation and execution into a mere 10-21 day period. After taking a close look at these proposed rule changes, it is not hard to see why some are calling them a proposal to create “Ambush Elections” that give employers little chance of winning.
B. The DOL Proposed Rule: Turning Labor Lawyers into Persuaders
In addition to the above proposed rules from the NLRB, to make matters worse, the rule proposed by the DOL will likely result in employers not getting comprehensive legal advice and assistance to guide their conduct during union election campaigns. The reason for this is that the DOL proposed rule will basically require labor attorneys to report to the DOL the details (including attorney-client communications and fees) of their relationship with any employer that they provide strategic assistance to during an election campaign. Currently, only so-called “persuaders” that speak directly to employees in an effort to persuade them to vote “no” in the election have to report the details of their relationships to the government.
An employer facing a union election will typically engage the services of a labor attorney and/or a particular type of labor consultant called a “persuader”. Persuaders are labor consultants that directly communicate (by speech or in writings) with employees in the voting unit on behalf of management during a union election campaign. The activity of persuaders is regulated by the Labor-Management Reporting and Disclosure Act (LMRDA), and requires persuaders to disclose in a yearly report to the DOL the nature of their activities and the fees earned in performance thereof. For 50 years, the LMRDA has provided that labor attorneys that merely advise employers of their rights and strategies during union election campaigns are exempt from reporting under the persuader rules, unless they communicate directly with voting unit employees.
Thus, how it sometimes works is that labor counsel advises the employer on the NLRB election process, strategizes with the employer on how to win the election, drafts communications subject to the employer’s final edits, and trains supervisors on the “Dos and Don’ts” of responding to union organizing. Where the employer determines that its supervisors are ineffective or inadequate in communicating the employer’s views to the employees in the voting unit, the employer may choose to hire a persuader to talk directly to the employees regarding the union election campaign.
The proposed DOL rule seeks to cover labor attorneys under the persuader rule by expanding the definition of “persuader activity” to include both direct and indirect efforts to persuade employees concerning their rights. The proposed rule accomplishes this by (1) shrinking the definition of “advice” to mean only oral and written recommendations, and by (2) expanding the definition of “persuader activity” to include when an attorney provides materials or communications in draft form to be included in an employer speech or poster/handout. In addition, an attorney would have to report under the persuader rule if he plans, directs, or coordinates the activities of employer representatives, such as supervisors and managers, or provides them with materials, whether for their own use or for distribution to employees. On its face, the proposed rule seems to be aimed at discouraging attorneys from active participation in an employer’s election campaign. At a minimum, it would seem to be aimed at discouraging labor attorneys from drafting any communications intended for use by the employer or its representatives.
Thus, under the proposed rules, if labor attorneys wish to stay in the union election business, they will have to relegate themselves to merely advising employers of their rights, and editing draft employer communications. The actual drafting of the communications will have to be left up to the employer. Bear in mind that in order for the employer to draft effective and lawful communications, the employer would have to understand which themes resonate most in union elections, are lawful, and how to word its messages in a lawful manner. Well, you will recall that under the NLRB proposed rules, the employer will have as few as 10 days to learn the entire NLRB election process, counter the union’s propaganda, train supervisors, craft a winning strategy, and draft persuasive and lawful material for distribution to employees. While theoretically possible, it is highly improbable that most employers will be able to pull this off. Even the best persuader companies recognize the importance of working with labor counsel. Without the benefit of labor counsel, employers will likely either mount a poor counter-union campaign, commit serious unfair labor practice violations, or both, resulting in (1) a loss in the election, or (2) the ordering of a rerun election, or (3) being hit with a bargaining order, which essentially forces the employer to deal with the union as if the union won the election.
To summarize, the combination of the proposed NLRB and DOL rules sends the message that the federal government wants employers to have (1) insufficient time to prepare its defense and counter a union election campaign, and (2) no labor counsel expertise in drafting effective and lawful union election campaign communications. In short, from where I sit, the federal government wants employers to lose more union elections.
III. All is Not Lost
Despite the fact that the NLRB has held some public hearings regarding its proposed rules, and both the NLRB and DOL are seeking public comments on the proposed rules for 60 days, it is safe to assume that these proposed rules will go into effect. Once they go into effect, it is also safe to assume that there will be a significant spike in union organizing activity. Rather than sit and wait for this to happen, or worse, sit and hope that it does not happen, the prudent employer will seize this moment in time to aggressively educate his employees on the cons of union membership and unionization. At a minimum, you should have your front-line managers and supervisors trained on the impact of unionization, recognizing signs of union activity, and basic union avoidance. Do not think that just because you see no signs of union activity at your work-site it means that you have nothing to be concerned about. As noted above, once the new rules go into effect, unions will ramp up their organizing of employers in an unprecedented manner. Be proactive while the law still gives you the time to be. Do not wait to be ambushed! Consult competent labor counsel as soon as possible.
With the experience and expertise of a large law firm, and the flexibility and lower costs of a small law firm, Reid Kelly, P.C. is committed to ensuring that small companies, and not-for-profits, have access to competent representation in traditional labor law matters at rates that are reasonable and affordable. For more information, call us at (718) 412-8452.
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