Law Firm Indianapolis - Ice Miller LLP

NLRB and DOL Launch Joint Attack on Employer Rights

On June 21 and 22, 2011 respectively, the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) published what appears to be a coordinated attack on the rights of employers faced with or concerned about potential union organizing campaigns. In a nutshell, here is why you should care: If the NLRB's proposed rules setting up "quickie elections" become final you may have only a matter of days after being notified of a union election to fully educate employees about the consequences of union representation; under the DOL's proposed rules, you may be required to report publicly on conversations with your lawyers and others concerning communications to employees, activities like supervisory training on union awareness issues and even drafting of employee handbooks and other policies that may affect your susceptibility to union organizing. These DOL rules would apply whether you face an election or not - and you will face the prospect of criminal penalties if you fail to comply.

These twin regulatory actions follow unsuccessful attempts to push pro-union legislation through Congress such as the Employee "Free Choice" Act (EFCA) and Patriot Employers Act, which would have overturned 70 years of federal labor law to dramatically increase the leverage of organized labor at the expense of employers and employees alike. The rules and regulations proposed by the NLRB and DOL use backdoor administrative processes and rulemaking to accomplish what the advocates of that legislation were unable to achieve through open, legislative processes.

Readers of the Informed Employer will recall the spirited public debate when the EFCA was introduced in early 2009, after President Obama was elected. Then-Senator Obama had stated in campaign promises that he would sign EFCA if enacted by Congress, which would effectively eliminate the secret ballot process in union elections in favor of card checks and make other reforms long sought by organized labor.

What EFCA-proponents did not anticipate was the extreme opposition of the American public at-large to these measures, and the original version of the EFCA was soundly defeated in Congress. Also defeated was an alleged "compromise" that would have allowed for "quickie elections" - effectively preventing employers from adequately informing and educating employees about unions and the disadvantages of union representation. Neither did organized labor anticipate the backlash at the state level, which resulted in a flurry of pro-employer/anti-union legislation across the nation, including "right to work" bills (eliminating mandatory union membership, dues and fees) and legislation ending or severely curtailing collective bargaining at the state level (which is not even covered by the NLRA).

Having failed to achieve their objectives through legislative means, supporters of organized labor decided to "enact" radical labor law reform by other means. To this end, the administration already had in place leaders of federal agencies who were committed to union-leaning initiatives, including Hilda Solis (a former Democratic member of Congress and daughter of a Teamsters representative) as head of the DOL and long-time union sympathizer Wilma Liebman as Chair of the NLRB. President Obama also bypassed the Congressional review process by appointing Craig Becker, a former union attorney for the SEIU, to the NLRB.

Under this new leadership, federal agencies have launched aggressive new enforcement initiatives in just about every area of federal labor and employment law, including matters within the jurisdiction of DOL, OSHA, EEOC and the OFCCP. The NLRB has been the least shy about its intent to overturn long-settled labor law principles, with a laundry list of decisions that have eroded employer rights such as the well-publicized complaint regarding Boeing's decision to open a new plant in a right-to-work state and other less-publicized actions by the NLRB's General Counsel involving injunctions and so called "nip-in-the-bud" cases (topics too broad for this discussion).

With that as background, the proposed rules issued on June 21 and 22 by the NLRB and the DOL, respectively, are the latest and most extreme examples of how regulation can be used to accomplish what failed legislation could not. What do these proposed regulation do, and why should employers care?

"Quickie Elections"

Despite the fact that unions already win more than 68 percent of all representation elections conducted, the NLRB has proposed to modify its rules regarding elections in the following significant ways to make union victories even more likely:

"Advice" Exemption Gutted

The DOL's proposed rules mark an equally significant change to how employers deal with issues of not just union organizing, but employee relations in general. The DOL oversees the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), which requires unions, employers and "persuaders" to report certain information and activities for public disclosure. Filed reports are available from the DOL and are published online at the DOL's website.

Under the LMRDA, reports must be made by any person who enters into an agreement or arrangement where an object thereof is, directly or indirectly, to persuade employees to exercise or not exercise (or the manner of exercising) their rights to bargain collectively. The report must include the identity of the employer and the consultant or lawyer doing the persuading, the terms of the arrangement, the type of activity involved, the identity of the employees targeted and the union involved. Both the employer and the lawyer/consultant must file these reports and face criminal sanctions if they fail to do so.

Under the statute itself, assistance to employers deemed merely "advice" on organizing activities is exempted from reporting. For some 50 years, the DOL interpreted this "advice exemption" correctly as excluding nearly all but direct contact with employees. Under the proposed rules, however, the advice exemption has been all but eliminated. The DOL rules would make the following significant changes:

Opportunity to Comment

What can you as an employer do now? You can make your voice heard. Call your federal representatives to start with. You can also contribute to the public comments that the NLRB and DOL must receive and evaluate in order to make the rules/regulations final. Ice Miller will be coordinating with the Indiana Chamber of Commerce to prepare and submit comments. If you would like to submit your own comments, you can do electronically via www.regulations.gov. You may either type comments directly or upload a previously prepared document.

Any comments must be submitted no later than August 22, 2011 for either rule.

If you have questions about these or any other employment-related matters, please contact Ryan Poor at ryan.poor@icemiller.com or (317) 236-5976, or any other member of our Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.   The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.


Links to the proposed changes

NLRB -

Redline of changes: http://www.nlrb.gov/sites/default/files/documents/525/nprmredline.pdf
Proposed Rule: http://www.federalregister.gov/articles/2011/06/22/2011-15307/representation-case-procedures

DOL -

Proposed Rule: http://www.federalregister.gov/articles/2011/06/21/2011-14357/labor-management-reporting-and-disclosure-act-interpretation-of-the-advice-exemption