Employers now face new labor organizing rules

March 3, 2012
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The percentage of private sector employees who are unionized dropped again in 2011, to just over 6 percent, continuing a steady 30-year decline.

It's no surprise there are people who aren't real happy about that decline, namely the unions who have clout with President Obama and, through him, with the administrative agencies whose leaders he appoints.

As a result, the National Labor Relations Board and the U.S. Department of Labor today appear to be working together to make it easier for unions to organize, by requiring employers to post notice of union rights, giving unions greater access to employees and a quicker election, and limiting an employer's ability to obtain consulting or other kinds of "persuader" services.

Powerful incentives are behind the White House's effort. The Democratic party receives much of its funding and support from unions. Unions fund these political efforts from membership dues. More members mean more dues revenue, which in turn means more contributions to Democratic candidates.

The current make-up of the NLRB is highly political. There are five seats on the board, all appointed by the President. Three are held by the party in power in the White House or by appointees who are members of that party, and two by the party in opposition.

Of the five members, the three most recent appointees are controversial because their appointments were not confirmed by the Senate. Rather, they were appointed by the President during a brief Senate "recess." These recess appointees are likely to face a court challenge, but probably not until they render opinions that can be appealed.

The NLRB is currently trying to raise employee awareness of the Labor Act. For all of the workplace notices that employers have had to post about laws covering discrimination, wage and hour rules, and FMLA, they never previously had to post a notice informing employees of their rights under the Labor Act. The NLRB has now issued rules effective April 30 requiring such a posting. This requirement, already twice delayed by court action, continues to be litigated.

The notice posting requirement covers employers large enough to be subject to NLRB jurisdiction, which is, practically speaking, virtually everybody in the private sector with more than one employee. Anyone who fails to post the notice and later commits an unfair labor practice faces enhanced penalties.

The NLRB is also trying to interpret the Labor Act as a "living" document by applying it in new contexts, even though the law dates back to the 1930s. As a result, the NLRB is increasingly becoming involved in cases determining an employer's ability to limit employee use of social media.

The Labor Act prohibits interference with "protected concerted activity." This prohibition applies whether one is union or non-union. Employees may act "in concert with" or "on behalf of" other employees to complain about, protest, or discuss wages, hours, and terms and conditions of employment, generally as long as they do not use violence or gross profanity or destroy property. This almost 80-year-old legal concept of "protected concerted activity" has been the central theme of the NLRB's new-found involvement in cases regulating employee use of the new social media such as Facebook to, for example, complain about working conditions.

Another way that the NLRB is trying to make it easier for unions to organize is by changing its rules, effective April 30, to speed up the process by which a union has an election at a facility (again subject to ongoing court challenges).

Under the previous rules, an election took place about six weeks after a union filed a petition to represent employees. Even more time may have passed if a hearing was held before that election to determine which employees in which classifications constituted an appropriate unit and were eligible to vote. All that is thrown out now by the NLRB's new proposed rules on what are being referred to as "quickie" or "ambush" elections, which will reduce that amount of time on the average to about 20 days after a union files its petition for an election.

For its part, the DOL enforces mostly wage and hour and various other laws, but has responsibility for one rather obscure union-related statute: the Labor Management Reporting and Disclosure Act. The DOL has proposed new rules under this act that require that anyone engaged in conduct or communications designed to persuade employees not to join a union must report and disclose any agreement to engage in such "persuader" activities to the DOL. The rule will also apply to employers using any third party or consultant for that purpose.

Under the proposed rules, anyone who provides material for dissemination to employees during a union campaign, directs activities of supervisors in connection with that, or works on union-free policies would have to report such activity to the DOL. Legal advice is exempt from disclosure, but the proposed rules narrow that exception.

The purpose appears to be to separate clients from their consultants — and even their lawyers — and make it more burdensome for employers to respond to a union organizing effort in the 20 days or so they may have under the proposed "quickie election" rules to do so.

All of these proposed measures will combine to make it easier for unions to organize employees. Employers need to stay tuned to these fast-moving national developments.

Dave Khorey is a labor partner in the law firm of Varnum LLP.

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