by William P. Barrett, David C. Burton &
Douglas M. Nabhan
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
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:
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.
This article contains general, condensed summaries of actual legal matters,
statutes and opinions for information purposes. It is not meant to be and
should not be construed as legal advice. Readers with particular needs on
specific issues should retain the services of competent counsel. For more
information, please visit our website at www.williamsmullen.com
or contact David C. Burton, 757.473.5354 or firstname.lastname@example.org.
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