Republicans, Employers Cry Foul on New Labor Dept., NLRB Rules


Republicans and employers across the country are calling foul in what is seen as a double whammy from the Obama administration this week.

The Department of Labor (DOL) and the National Labor Relations Board (NLRB) each proposed regulations which many in the employer community believe will make it easier for unions to organize, while harming the ability of workers to make an informed decision on whether to join a union.

The first came on Monday from the DOL’s Office of Labor Management Standards (OLMS), which proposed a regulation mandating that anyone giving advice to an employer during a union election must submit a disclosure to the Department.

However, the more controversial regulation was proposed by the NLRB on Tuesday. The proposed rule would shorten the time period between when a union files for a representation election and the time the election is held. The NLRB regulation, known as “quickie elections,” would give unions a considerable advantage in organizing by giving management less time to respond to a union campaign.

In a statement issued shortly after the NLRB announcement, U.S. House Education and the Workforce Chairman John Kline (R-Minn.) said that the proposed rule was a “direct affront to the millions of Americans desperate for jobs and opportunities.” He added that it would “undermine an employer’s lawful right to communicate with his or her employees” and that “it will cripple a worker’s ability to make an informed decision” in a union election.

Senator Mike Enzi (R-Wyo.), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee echoed this sentiment, calling the NLRB’s proposal an “outrageous assault on America’s job creators and workers.”

He said that “an open and transparent process that will allow workers to weigh both the pros and cons of joining a union should be the goal, instead of speeding up the process to keep workers from making informed decisions.”

The current unionization process allows a union to have an infinite amount of time to drum up support from workers. Often, Employers often do not even know that a union is trying to organize them until a majority of employees sign cards. During the election process an employer has about 45 to 60 days to make its case to workers, after the union has likely campaigned for months or even years.

The Associated Press notes that, “The new plan could cut [the election] time by days or even weeks — depending on the case — by simplifying procedures, deferring litigation, and setting shorter deadlines for hearings and filings.”

In his dissent from the proposed rule, the lone Republican Member of the NLRB, Brian E. Hayes, said that the quickie election procedure would result in elections lasting only 10 to 21 days.

To illustrate this process, imagine if union elections were regular elections for a political office. Candidate A campaigned for six months or longer, and then announces an election when he thinks he can win. Candidate B, however, may get no more than 60 days to make his case.

Now imagine if the Federal Election Commission announced that Candidate B would only have 10 to 21 days to campaign. The likelihood of candidate B winning would be very slim.

The DOL regulation proposes to change the definition of advice given to businesses dealing with union campaigns. The Labor Management and Disclosure Act (LMRDA) requires unions to report how they spend the money they receive as dues from their members.

Employers are also covered by the LMRDA and must report actions taken in defense of a union organizing campaign. Law firms and consultants, hired by the employer, who meet directly with employees to influence their decision to join a union, are required to report this activity to DOL under section 203(b) of the LMRDA. This is called “persuader activity.” It is generalized defined as: If an employee hears it, reads it or sees it, it has to be reported.

Some advice is not considered “persuader activity” and is not required to be reported. Section 203(c) of the LMRDA exempts advice given solely to the employer. Under the “advice exception,” a consultant does not need file a report with DOL if he has no direct contact with employees and only provides the employer (or supervisors) advice or materials for use in persuading employees, which the employer may accept or reject.

The proposed regulation would expand the disclosure requirement to “indirect communication,” which includes anyone who communicates with the company regardless of whether or not they speak to workers.

This could include law firms (which could jeopardize attorney client privilege), and even polling companies that conduct employee satisfaction surveys. It could also even include training programs that teach supervisors to treat their employees well. Non-compliance could result in criminal penalties.

Both the NLRB and DOL rules may skew the playing field to favor unionization and could decrease employers’ ability to effectively communicate with their employees.