NLRB Proposal

by | Aug 9, 2011 | General | 0 comments

The National Labor Relations Board (NLRB) recently proposed some changes to union election campaigns. Highlights of the proposal include:

• Shortening the timeframe.  Shortening the time between filing and the election creates a disadvantage for employers, because unions can prepare their entire campaign before going public with it.  Unless employers have adequate time to prepare, employees will not have the necessary information to make an informed decision regarding unionization.  The NLRB has also not shown why the current timeframe (median of 38 days) needs to be shortened.

• Changes to the Statement of Position.  The proposal requires employers to disclose their entire case theory in this document. It also precludes employers from presenting evidence on any issue that the employer fails to include in the Statement of Position.  This preclusion raises due process issues for employers which would increase litigation.

• Mandated Disclosure of Employee Information.  The NLRB proposes employers be required to turn over private employee information, including employee telephone numbers and e-mail addresses.  This is an invasion of privacy and an invitation to distract employees during the workday.

• Deferral of Representational Disputes.  The proposed rule, under certain circumstances, defers litigation of representational disputes, such as the eligibility of voters, until after the election is held.

Comments to the NLRB are due August 22, 2011 and can be made via the website.

The U.S. Department of Labor (DOL) has also issued a proposal that would expand the public disclosure rules to require that employers report virtually all services regarding labor relations and union organizing. According to the DOL website, “an agreement would be reportable in any case where the consultant engages in persuader activities that go beyond the plain meaning of “advice.” Reportable persuader activities would include those in which a consultant engages in any actions, conduct or communications on behalf of an employer that would directly or indirectly persuade workers concerning their rights to organize and bargain collectively, regardless of whether or not the consultant has direct contact  with workers. An agreement also would be reportable in any case in which a consultant engages in specific persuader actions, conduct or communications regardless of whether advice is given, such as when a consultant plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort. “

Taken together, the DOL and NLRB rules will severely inhibit employer free speech and have the effect of preventing employees from hearing both sides of the unionization debate.  The comment period for the DOL rule was recently extended until September 21, 2011.