Three years ago, during the summer of 2011, the National Labor Relations Board ("NLRB" or "Board") undertook two initiatives to promote unionization among private sector workers. First, in June 2011, the NLRB issued a notice of proposed rulemaking to expedite representation elections. (After only two days of hearing in late-July, the NLRB issued its final rule for expedited elections in December 2011.) Second, in August 2011, the NLRB issued a final rule requiring private sector employers to post notices advising employees of their rights under the National Labor Relations Act ("Act"). Both of these initiatives were stymied by federal courts of appeal upon litigation commenced by various employer groups.
In response to these two NLRB initiatives, many employers turned their attention to improving workplace morale by more effectively communicating with employees, assessing wage/benefit packages, and taking other pro-active measures to counter the NLRB's initiatives. In the almost three years that have passed since the NLRB's failed initiatives, however, many employers have shelved their pro-active efforts for other pressing business demands.
On February 6, 2014, the NLRB issued a notice of proposed rulemaking that mirrors the rule it proposed in June 2011. Despite being branded as the quickie, ambush or expedited election rule, or even as EFCA-light, all employers – even those not presently in the heat of an organizing drive – need to refocus and pay close attention. Some version of the newly proposed rule will eventually be implemented as a final rule. The final rule will hinder an employer's rights under the Act to participate in the representation process before the NLRB and to lawfully communicate with its employees on the important issue of union representation. To make matters more difficult for them, employers may be further restricted in their ability to advise employees on unionization under the anticipated changes to the Department of Labor's persuader regulations, which are expected to be issued this spring.1 Now is the time for employers to dust off their playbooks and re-commence pro-active measures.
The NLRB's 2011 Rulemaking
The June 2011 proposed rule included many significant changes to the election procedures that, when viewed in the cumulative, severely limited an employer's ability to take lawful steps to counter unionization efforts. As summarized in Littler's June 2011 ASAP on the same proposed rule, the significant changes the NLRB seeks include:
After receiving over 65,000 comments in response to the June 2011 proposed rule and holding two days of hearing in July 2011, the NLRB issued its final rule on December 22, 2011. The final rule, which included a subset of the proposed rule, was in effect for less than one month before it was struck down by the U.S. District Court for the District of Columbia on a procedural issue regarding then Board Member Brian Hayes' status. The final rule was caught up in litigation for the next two years. Instead of further litigating, in December 2013, the NLRB agreed to drop its appeal of the district court's ruling.
The NLRB's February 6, 2014 Notice of Proposed Rulemaking
In the preamble to the 2014 notice of proposed rulemaking, the NLRB makes it clear that it is merely re-issuing the 2011 proposed rule. "The present proposal is, in essence, a reissuance of the proposed rule of June 22, 2011. 76 FR 36812. The Board is again proposing the same changes which [sic] were proposed in 2011, and asking for any comments the public may have on whether or how the Board should act on these proposals." The NLRB also made it clear that the newly proposed rulemaking incorporates by reference the comments and testimony received in response to the 2011 proposed rule, and all such information will be considered (again) in determining whether to issue a final rule. In other words, all of the changes contained in the 2011 proposed rule, even those the Board rejected after expending significant resources to receive comments and hear testimony, have been revived for re-consideration in 2014.
As expected given its controversial nature, the 2014 notice of proposed rulemaking was adopted according to party lines, with the three Democratic members (Mark Gaston Pearce, Kent Hirozawa and Nancy Schiffer) voting in favor of and the two Republican members (Phillip Miscimarra and Harry Johnson) voting against the proposed rule.
In dissenting, Board Members Miscimarra and Johnson opine for over 50 pages on the faults of the proposed rulemaking. They take aim at the majority's rationale behind the proposed changes and the practical application of the proposed changes. In essence, the dissent states that delaying the hearing until after the election creates an "election now, hearing later" process that deprives parties and voters of knowing who is actually eligible to vote. "To state the obvious, when people participate in an election, it is significant whether they actually have a right to vote, whether their vote will be counted, and whether the election's outcome will even affect them." The "election now, hearing later" approach would remove fundamental questions such as:
By shortening the time before an election, the dissent points out, voters will be compelled to "vote now, understand later." The shortened time period from the filing of a petition to the election– which Littler estimates can occur in just 18 days – would restrain employers, unions and employees from engaging in protected speech on the important topic of whether or not to unionize.
The dissent does not merely counter the majority's analysis; it also offers an alternative path for consideration. They suggest that the Board should set a minimum amount of time from the filing of a petition before an election can be held. Doing so would provide all parties with an opportunity to consider election-related proposals and give employees the fullest freedom of choice in the election. The dissent further suggests that elections in general have not been unduly delayed under current Board procedures, and the focus should be on the real cause of the delays (e.g., the filing of blocking charges) in the limited situations where the election process has been delayed. Also, the dissent suggests that the Board take a hard look at its internal processing of elections to expedite resolution of representation cases, as opposed to taking away rights to a pre-election hearing. Two additional recommendations of the dissent are to more aggressively and efficiently litigate incidents of unlawful election misconduct and identify ways to safeguard employee privacy as election procedures adapt to the changes in technology.
The public has until April 7, 2014 to submit comments on the February 6, 2014 notice of proposed rulemaking. Littler's Workplace Policy Institute" expects to file comments in opposition to the new proposed rule on behalf of a number of organizations.
Steps Employers Should Take to Prepare for the Future
Employer organizations are expected to challenge any final rule that comes from this new round of rulemaking. The challenges, however, are more likely to be focused on the substance of the rule, as the procedural debate over whether the Board has a properly constituted quorum no longer exists. (All five members of the Board received Senate confirmation effective July 30, 2013.)
Regardless of successes or failures in the anticipated court battle over the rule, there will be changes to the way the NLRB processes election petitions in some form or another. The following are a few pro-active steps employers should consider taking to prepare for this eventuality.
First, employers should refocus on creating positive employee relations. There are obvious benefits to improving employee satisfaction, increasing productivity and efficiency, and reducing turnover. A side benefit is fostering open, direct communications among all levels of management, supervisors and employees, which may help limit employees' thoughts about union representation. Conducting a vulnerability assessment is one tool to guide your positive employee relations program.
Second, in advance of an organizing threat at a facility, employers should review their operations for issues relating to the scope and composition of a potential bargaining unit. As to scope (i.e., locations), this entails looking into whether there are certain locations that are so integrated that they should be included in the same petitioned-for unit. As to composition (i.e., job classifications), this entails looking into job classifications and determining which classifications share a community of interest. If the company wants to include or exclude certain locations and/or job classifications during an organizing effort, it can restructure the operations and/or jobs now to bolster its position in the future. This is important in light of the NLRB's 2011 Specialty Healthcare decision permitting micro-unit organizing.2 It is also important given the proposed rule change that would require an employer to state its position as to the appropriateness of a petitioned-for unit and address eligibility issues within seven days of a petition's being filed.
Third, employers should review their policies and rules to ensure compliance with the Act. The NLRB continues to hold that the mere maintenance of a policy or rule that it construes as interfering with employee rights under the Act – even without enforcement – can be used to set aside an election victory won by an employer. Also, during an organizing drive, certain policies are often brought to the forefront, including those relating to solicitation and distribution, off-duty access, and wearing of union buttons.
Fourth, employers should provide adequate training to their management team to ensure the members of the team understand the importance of fostering positive employee relations and how to effectively communicate with employees.
Footnotes
1. See Ilyse Schuman and Michael J. Lotito, Workplace Policy Institute: A Look Ahead to Legislative and Regulatory Changes in 2014, Littler Insight (Jan. 16, 2014), available at http://www.littler.com/publication-press/publication/workplace-policy-institute-look-ahead-legislative-and-regulatory-chang.
2. See Jack Lambremont and Kyllan Kershaw, Labor Board Likely Emboldened Following Sixth Circuit Decision Paving the Way for Micro-Units, Littler ASAP (Aug. 22, 2013), available at http://www.littler.com/publication-press/publication/labor-board-likely-emboldened-following-sixth-circuit-decision-paving-.
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