For organized labor, Christmas has come early. Unfortunately, Americas’ employers received a lump of a coal
Late last week, President Obama’s National Labor Relation’s Board finalized the so-called “ambush election rules”—a gift that was at the top of every union’s wish list. By speeding up the timeframe for representation elections, this new regulation will significantly handicap employers’ ability to contest union organizing drives.
As Siegel O’Connor has previously noted, the average time between when a union files a representation petition—the first step in organizing a workplace into a union—is 38 days, but this new rule would reduce that to as few as 10 days. Consequently, unions could launch guerrilla-organizing campaigns that, because of the compressed timeline, deny management its legal right to discuss with their employees whether a union has anything worthwhile or constructive to offer them or the company.
Employers across the country have strongly criticized the change. For instance, the Retail Industry Leaders Association (RILA) issued the following statement:
This flawed rule is harmful to both workers and employers. By dramatically changing the procedures that govern union elections, the rule limits the information available to employees prior to entering the voting booth, potentially subjects employees to harassment at home and undermines the due process rights of employers.
Bottom Line for Employers
Fortunately for America’s employers, these new regulations don’t go into effect until April 2015; additional legal and legislative challenges are likely. In the interim, however, Employers should contact their respective members of Congress and demand an end to the Obama NLRB’s hyper-partisan antics. Employers are also urged to contact their labor counsel and begin developing a strategy for contesting ambush elections.Read More
Breaking News: Last week, the National Labor Relations Board (NLRB) announced that it’s moving to shorten the length of time in which a labor union certification election is held.
The Basics: According to the Board, this new rule would:
- Allow for electronic filing and transmission of election petitions and other documents
- Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process
- Streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation
- Include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology
- Consolidate all election-related appeals to the Board into a single post-election appeals process.
Impact on Employers: Currently, the average time between when a union files a representation petition—the first step in organizing a workplace into a union—is 38 days, but this new rule would reduce that to as few as 10 days. Consequently, unions could launch guerrilla-organizing campaigns that, because of the compressed timeline, deny management its legal right to discuss with their employees whether a union has anything worthwhile or constructive to offer them or the company.
As noted in a letter from the U.S. House of Representatives labor committee to NLRB chairman Mark Gaston Pearce, a former union attorney, “[t]his rule will seriously limit employer free speech and undermine employee free choice.” The NLRB announcement also drew criticism from business groups such as the National Retail Federation.
Furthermore, employers need to be concerned about the impact on their employees’ privacy. As unions are exempt from some state laws against stalking or trespassing when their members are engaged in organizing activities, as a report from the U.S. Chamber of Commerce revealed in 2012, questions as to how and to what extent unions will use employees’ personal information remain unanswered.
What’s Next: The Board will be accepting public comments on the new proposed rulemaking through April 7, 2014. The Board will also hold a public hearing during the week of April 7.
Bottom line for Employers: With a clear Democratic majority, the Board will likely move quickly to implement this new rule. However, on March 5, 2014, the U.S. House of Representatives Education and Workforce Committee will be holding a hearing on the ambush election proposal. We will continue to keep you updated as the NLRB continues to push its pro-union agenda.Read More
In an important victory for employers and proponents of individual freedom, U.S. District Judge James Boasber threw out a recent NLRB “Snap” election mandate.
Woody Allen and the Quorum Requirement
“According to Woody Allen, eighty percent of life is just showing up,” Boasberg wrote in an opinion issued today. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”
In this case, Boasberg held that only two of the three members of the Board actually voted on the rule—3 members are required to constitute a quorum. Although the Board claimed its “snap” election rule was based on a 2-1 vote, the Board’s sole Republican member, Brian Hayes, was not able to cast his vote, as he was given only a few hours notice via the NLRB’s electronic ballot system. Boasberg ruled that, despite the Board’s claims to the contrary, Hayes’ inability to vote did not constitute a vote. Therefore, with a final vote of just 2-0 on what’s supposed to be a five-member Board, the court ruled that there was no quorum and therefore the rule was invalid.
As a result, representation elections will continue under previously established procedures unless the board votes with a proper quorum.
Bottom Line for Employers
Boasberg’s decision is, most likely, a temporary reprieve for employers. Given that Obama has (through dubious recess maneuverings) appointed new members to the Board, the passage of yet another Snap election rule seems likely—as does the another battle over whether a quorum exists. Until the President stops playing games with recess appointment—or a more business friendly President is elected—employers should expect uncertain regulatatory climates to persist.Read More
Terence Flynn, a Republican, nominated to the Board by President Obama has resigned from the National Labor Relations Board (NLRB) effective July 24, 2012. In the interim, Flynn has recused himself from all agency activities.
Flynn was one of three recess appointments made by the Obama Administration.As the constiutitonality of these appointments remains suspect, each one is currently being contested in court. Specifically, the lawsuit filed against these appointments claims that, becayse Congress was technically in session when the appointments were made, the Administration lacks the authority to make an “interm” appointment.
Flynn’s resignation now leaves the NLRB with three Democratic appointees, and just a single Republican. Considering the current political climate in our nation’s capital, its unlikely the President will make another appointment before the 2012 election. And should the President buck conventional widsom and make a new appointment, the odds of such an appointment being Republican are almost zero.
Flynn’s resignation sets the stage for another political battle between the administration and the Congress over a NLRB appointee. This new battle will continue even as litigation over the temporary appointment continues in the court.
It is unlikely we will see a resolution of this issue until after the elections this Fall.Read More
Unions need dues to survive, and the Service Employees International Union (SEIU) is certainly no exception. And as the amount of union dues collected across the country continues to plummet, organized labor is devising more and more “innovative” ways to keep its coffers full.
Perhaps unsurprisingly, this campaign to squeeze every last dime out of potential union members—and taxpayers—has found its way to Connecticut.
In-Home Health Care Workers Under Siege
The SEIU has launched an aggressive campaign to collect dues from in-home health care workers. Last December, Governor Malloy signed an executive order paving the way for daycare providers and personal care attendants to collectively bargain. And now, the SEIU is sending innocuous looking union authorization cards to employees’ homes. While the cards ask only if the employees wish to join the union, they do not inform employees of the consequences of replying: If the SEIU receives a majority of all returned cards in its favor, it becomes the exclusive bargaining representative for all of the state’s in-home health care employees.
Should these in-home health care workers wind up being represented by the SEIU, Connecticut taxpayers will be de facto paying dues to the SEIU. After all, these in-home caregivers are paid, in part, through a subsidized state program. If chunks of these employees’ subsidized salaries are then passed along to the SEIU, taxpayers will be footing the bill for Organized Labor’s radical political agenda, and its leaders’ bloated six figure salaries and out-of-control boondoggles. It’s unlikely that this is the scenario Connecticut taxpayers envisioned when they learned their monies would be subsidizing in-home health care workers.
Bottom Line for Employers
Frightened by underfunded pension plans and declining union membership, the SEIU is getting desperate. But a desperate union is a dangerous union—particularly when the union in question is the SEIU. Employers should view this latest dues-grab as yet another example of how unions are willing to do whatever it takes to remain relevant. And as more and more workers decide union membership isn’t the right choice, organized labor is turning to its political allies (and their access to taxpayer money) for support.
—Ryan O’Donnell is an Siegel O’Connor associate specalizing in union avoidance campaigns.Read More
On Wednesday, November 30, the Board adopted a resolution incorporating some of its prior proposals for “quickie” or “snap” elections. While the Board did not adopt its previously proposed rule, it did vote to accelerate the voting process for union elections.
As presently constituted, the Board has only three members, two of whom are union attorneys appointed by President Obama. And of these two union attorneys, one was a recess appointment whose term expires at the end of 2011. Therefore, beginning next year, the Board will only have two members left—and without a quorum of at least 3 members, the Board cannot enforce its decisions. Any wonder why the current Board is rushing to get such unpopular rules, such as “snap elections,” passed?
Danger: New Board Rules Ahead
The new “snap” or “quickie” election rule must be drafted and approved by the Board. The new rule will:
- Empower the hearing officer the authority to limit evidence to be introduced at the repre
- sentation hearing;
- Allow the submission of a post-hearing brief only at the discretion of the hearing officer;
- Eliminate the employer’s right to seek review of the Regional Director’s pre-election rulings;
- Eliminate the present requirement that the Regional Director normally not schedule an election until 25 to 30 days after the direction of the election; and
- Make post-election Board review of Regional Director’s and ALJ’s post-election disputes discretionary.
Fortunately for employers, the Board resolution did not include parts of the earlier proposed rule including a the requirement that employers make available the email address and telephone numbers of employees on the Excelsior list, and change the period of filing for the Excelsior list from seven to two days.
Bottom Line for Employers
If the Snap Election Rule as presented above is adopted, it will significantly aid the unions and union representatives in their attempts to organize employees. Employers will have considerable less time to communicate their positions on unionization to employees.
These proposed changes also hurt employees, who will now be denied the opportunity to learn what unions can, and cannot, do.
If this proposed rule is adopted, the National Labor Relations Board will do what the United States Congress could not when it failed to pass the union’s “card check” bill: Attempt to reverse a decade-long decline in private sector union membership—at the expense of both employers and employees.
-Bud O’Donnell specializes in matters before the National Labor Relations Board including representation elections and unfair labor practice hearings. He also advises clients on plant closings and relocation issues, and has represented clients in collective bargaining, grievance arbitration and strike consultation in numerous industries.Read More
In a shocking decision, the NLRB has scheduled for Nov. 30 a vote on a modified version of the proposal to shorten union election periods.
As Siegel O’Connor previously noted, current Board member Craig Becker’s term is due to expire at the end of the year, leaving the ordinarily five-member Board with just two members. The Supreme Court recently held that the NLRB must have a “quorum of three members” in order to fully exercise its powers. Therefore, in order to secure passage of this controversial SNAP election regulation, the two Democratic members of the Board have decided to rush forward with a vote next week.
And not only are the two Democratic members of the Board rushing this vote but,as Tina Korbe at Hot Air documents, they’ve excluded the sole Republican member of the Board, Brian Hayes, from the revision process. Specifically:
- Hayes has not been informed of how the rest of the Board plans to address the responses received during the proposed rulemaking comment period last summer;
- Hayes has not been informed of what portions of the proposed rule will be excluded, included, or modified in the final version; and
- Hayes was offered a “take-it-or-leave-it proposal last Tuesday, and he was given three days—3 days—to respond. Potentially dissenting members are traditionally given 90 days to act on a proposed draft.
In response to this treatment, Hayes has sent a letter to Members of Congress. Unfortunately, given the current political make-up of Washington, any remedial actions taken by the House will likely be defeated in the Senate.
Bottom Line for Employers
Can anyone stop the Board from imposing SNAP elections on employers across America? Board Member Hayes still has one card left to play: He can resign immediately, leaving the Board with only two members, and stripping it of rulemaking power. Such a move would be drastic, to be sure. But with employers still struggling to survive in a tough economy, this country simply cannot afford SNAP elections.Read More
Last month, National Labor Relations Board Regional Director Jonathan Kreisberg hosted an informational breakfast at the Board’s Region 34 office in downtown Hartford. This breakfast, while informal, offered attorneys a unique perspective on the current state of the NLRB—at both the regional level, and in Wa
should pay particular attention to these five points:
While Director Kreisberg’s remarks covered a wide-range of topics, employers
- Budget concerns will continue to result in talks of regional downsizing, and, perhaps, even elimination. While Director Kreisberg doesn’t believe Regional 34 is at immediate risk, the cases currently covered by Regional 34 could eventually be split between Boston and New York.
- The NLRB’s case in Register Guard case could be overturned, and has been targeted by the Board’ General Counsel. Under Register Guard, employers may prohibit employees from sending non-job related solicitations using the e
mployer’s email system, including union-related communications. Overturning this case would give unions yet another strong tool to assist in their organizing efforts.
- Social media will continue to be a red-hot issue for the Board. Director Kreisberg discussed the importance of employer’s narrowly tailoring social media polices in accordance with the guidelines offered by both the General Counsel and the National Chamber of Commerce.
- “Non-competitive” claims made by employers at the bargaining table are going to be subject to stricter scrutiny, which will likely include the disclosure of financial information.
- Quickie, or “SNAP,” elections remain a very real (and, for employers, very scary) possibility. While the Board has proposed a rule that would allow such quickie elections to take place, such elections remain a hot-button issue. Indeed, serious questions remain as to whether a three-member Board would even make such a profound change to the National Labor Relations Act
Bottom Line for Employers:
Each of these five issues will have a significant impact on employers. Therefore, it’s important that employers remain update-to-date on these rapidly developing issues—either through consultation with counsel or by checking out one of Siegel O’Connor’s labor and employment seminars. For more information, please contact Bud O’Donnell.Read More