Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

The NLRB published a final rule on the election process late last year.  In doing so, however, the final rule left out a number of changes to the election process that were originally proposed in June 2011.  For example, there were proposed changes to the requirements to provide lists of employee names and contact information after an election petition is filed, the timing of providing that list, and other issues.  As previously explained, the NLRB announced last month that it would keep these additional changes to the election rules under consideration for possible future action.

In an interview published by the Associated Press yesterday, NLRB Chairman Pearce (D) confirmed his intention to continue pushing forward with these additional regulatory proposals.  "We keep our eye on the prize," the AP quotes Chairman Pearce as saying. "Our goal is to create a set of rules that eliminate a lot of waste of time, energy and money for the taxpayers."  Chairman Pearce announced his hope that the NLRB will propose the rules "soon," according to the AP.

For the labor professional, this most recent development confirms that there is likely more rulemaking yet to come on the so-called "ambush election" or "quickie election" rule.  This announcement does not, however, alter the currently announced effective date for the final rule published last month on the election process.  It is still scheduled to become effective on April 30, 2012.

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The NLRB has announced that it will hold an open meeting on July 18, 2011 to consider input from interested parties about its recently proposed rule on the election process.  The meeting will take place at the NLRB's headquarters in Washington, D.C. and will begin at 9 a.m.  Those interested in attending, or making a presentation, must notify NLRB staff no later than 4 p.m. this Friday, July 1, 2011.  Labor professionals seeking additional information about the meeting can locate details in the Federal Register or on the NLRB's website.

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It is only Wednesday, and yet the week has still been a tough one for employers concerned about union-related issues. On Monday, the U.S. Department of Labor proposed a new interpretation regarding persuader activity. Then yesterday, the NLRB announced a proposed rule that will significantly change, and likely accelerate, the union election process. The official publication of the NLRB’s proposal will take place today.

The Notice of Proposed Rulemaking (“Notice”) maintains that “the proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation.” Through the proposed amendments, the NLRB intends to fix perceived flaws in the NLRB’s current election procedures that, according to Chairman Liebman (D), build in unnecessary delays, encourage wasteful litigation, reflect old-fashioned communication technologies, and allow haphazard case-processing. 

Member Hayes (R) vigorously dissented (pdf) to the issuance of the Notice. Characterizing the proposed amendments as championing “a belief that employers should have little or no involvement in the resolution of questions concerning representation,” Hayes warned that the proposed changes would amount to a union-friendly “quickie election” option in which elections would be held in 10 to 21 days after the petition’s filing. 

The Notice presently contains no specific deadline by which a union election must be held following the filing of an election petition. Yet, any shortened timeframe between a petition and an election may stymie employer efforts to convey the company’s perspective to employees. In contrast, the union has likely communicated with employees for some period of time before an election petition is even filed. This truncated employer messaging timeframe concerned Hayes, who wrote, “[m]ake no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.” 

According to an NLRB fact sheet, if adopted the proposed amendments would also:

·         Standardize and accelerate timeframes for parties to resolve or litigate issues before and after elections.

·         Require parties to identify issues and describe evidence soon after an election petition is filed, or forfeit the right to raise those issues later.

·         Defer litigation of most voter eligibility issues until after the election.

·         Require employers to provide a final voter list in electronic form much earlier than under current law, and require that list to include voters’ telephone numbers and email addresses when available.

·         Consolidate all election-related appeals to the NLRB into a single post-election appeals process.

·         Make NLRB review of post-election decisions discretionary rather than mandatory.

The NLRB’s proposed process changes could significantly impact an employer’s approach to a union election. Some of the changes and their effect, like the new eligibility list requirements, are straightforward. The impact of other changes may not be as immediately obvious. For example, deferring certain voter eligibility questions until after an election could introduce substantial uncertainty during the campaign process.

Finally, although the proposed regulations do not implement the precise types of changes EFCA would have brought, they clearly are designed to speed up the election process. Like EFCA’s card check, a quicker election process favors unions over employers. Thus, labor professionals will want to carefully review all of the proposed changes to determine how each may impact their organization’s own, unique circumstances. If an employer or industry/trade association wants to provide comments on the rules, they may do so at www.regulations.gov for the next 60 days.

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A supervisor gives a pro-union petition to her subordinates and asks them to sign it.  Not surprisingly, some of them do so.  The supervisor then remains actively involved in the organizing campaign.  She speaks at union meetings and wears union insignia.  In the secret ballot election the NLRB conducts, the union wins the majority of the votes cast.

Should the election result be set aside based on the supervisory employee's conduct?  Not according to a decision released yesterday by the NLRB.  In Terry Machine Co., 356 N.L.R.B. No. 120 (2011), the NLRB held (pdf) in a 2-1 decision that the solicitation of signatures on a union representation petition by seven different supervisors didn't warrant setting aside the election results.

The majority, applying a 2004 NLRB decision, reasoned that the employer's anti-union campaign "mitigated" the effect of the supervisors' activities.  In particular, the majority noted that the employer threatened to terminate the pro-union supervisors, and that the supervisors communicated that threat to employees.  Some of the supervisors, however, continued to campaign for the union even after the threat, without any repercussion.

Member Hayes disagreed with the majority's "mitigation" finding.  He noted that the dissemination of the threat to fire the supervisors was not done by the employer, but by the supervisors themselves.  Moreover, he did not believe that the antiunion campaign could mitigate the effect of pro-union supervisors soliciting support for the union and opposing that very campaign.

Another holding in the case is also significant.  The election that the employer challenged occurred in 1999.  The case, however, had a tortured procedural background, having previously been before the NLRB three different occasions.  Despite the passage of time, the majority certified the union as the representative for the employees in the bargaining unit.  Member Hayes dissented on this point as well, noting that court of appeals precedent drew into question the enforceability of any order requiring bargaining with the union in light of the substantial delay in the NLRB's handling of the case.

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In a notice (pdf) to be published today, the Department of Labor is soliciting comments on electronic voting in union officer elections.  The law requires that unions elect officers based on a secret ballot vote.  According to the notice, labor unions and other interested parties have requested guidance on the use of electronic voting mechanisms in union officer elections.  The litany of questions on which the DOL seeks input can be found at the end of the notice.

Labor professionals should note the following points about this development:

• First, it does not apply to union representation elections conducted by the NLRB.  Instead, it applies to elections unions conduct internally to determine their officers.
• Second, if guidance is issued, it may have an effect on the NLRB.  Last year, the NLRB requested information on how it could implement electronic voting in union representation elections.  If the DOL issues guidance on the issue, the NLRB may follow suit.  After all, the NLRB's recent proposed rulemaking on employer notice followed DOL regulations requiring federal government contractors to do the same thing.

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Earlier this week, we identified three things the labor professional may want to look for in the mid-term elections.  The election is over and most, but not all, of the results are in.  Of the three things identified on our earlier post, we can report results on two of them.

First, the state constitutional amendments designed to protect the secret ballot in a union election proposed in four states all passed by substantial margins.  In Utah, the vote was 60% to 40% in favor.  Arizona's Proposition 113 passed by a similar margin.  In South Carolina, Amendment 2 passed by a whopping 86% to 14% margin.  Finally, in South Dakota, Constitutional Amendment L passed by a 79% to 21% margin.  Clearly, voters in those states prefer the secret ballot, even when it comes to union representation elections.

Second, in the two U.S. Senate races identified, the results of the race in Colorado are very close.  Democratic incumbent Michael Bennet leads his Republican challenger Ken Buck by about 7,000 votes, with some ballots still to be counted.  In West Virginia, Democratic candidate Joe Manchin beat his Republican challenger with 53% of the vote.  Both distanced themselves from EFCA during the election.

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With card check recognition all but dead, the UAW is trying to take matters into its own hands in re-writing rules for union elections. A couple of months ago, UAW President Bob King stated the following during an auto industry speech about the “Free Choice Act” and his notions for principles for fair union elections:

While the UAW strongly supports the Employee Free Choice Act, we will not passively sit and wait for its passage. In our strongest historical traditions we will take direct action now in every way we can to protect all workers in exercising their First Amendment Rights.

The UAW does believe in the principle of the fair secret ballot election in which workers can decide freely whether or not to join the union.

Therefore, we are crafting a set of guidelines called the UAW Principles for Fair Union Elections. These principles are being adopted from guidelines developed by the Labor/Management Institute for Employee Choice.

* * *

We will soon be unveiling these principles, and we will present them to the executives within the industry who are not currently unionized. We will ask them to sign on to these principles. If a company agrees to adopt the UAW Principles, and then abides by these principles, we will respect the decision of their workers whether they vote to join the union or not.

We have now seen the UAW’s Principles appearing in several UAW campaigns. The UAW’s Principles are as follows:

UAW Rules for Fair Campaign

In the spirit and traditions of American Democracy, the workers and the management of XYZ Company agree to respect the right of each worker to make a decision to vote in an atmosphere free from fear and intimidation. Toward that end, both parties agree to the following:

1.         Because the primary purpose of XYZ is to produce the best quality product, both the union and company pledge to remember that the primary purpose of this company is to produce the best quality product possible. 

2.         The election campaign will be free from fear, intimidation, harassment, discrimination, surveillance, interrogation and any other activity which interferes with free exercise of election rights.

3.         To further protect the company and its need for productivity, there will be no campaigning that interferes with work. No one will be taken off his or her job or away from his or her duties to discuss the campaign, either pro or con. 

4.         All meetings about the election – either individual or group – will be strictly voluntary. If the employer chooses to hold meetings on company time union supporters shall be granted a meeting of equal length to present the union’s position. Equal time, equal representation to match the employer’s presenters and/or guests.

5.         The union supporters shall be granted equal posting rights. This means that if the employer can post any material in opposition to employees having a voice, then the union supporters may post material of equal size and length.

6.         In the event an anti-union consultant is hired or continues to be retained by the company, the name of the consultant will be made public, and a full and public accounting will be made of all money paid or committed to the consultant (as provided by the U.S. Department of Labor). 

7.         None of the supervisors will be punished or discriminated against by refusing to campaign against the workers wanting to form their local union.

To our knowledge (but not to our surprise), no employer has agreed to these principles.   

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In all of the talk about the mid-term elections on November 2, it would be easy to overlook issues that might be more important to the labor professional.  Thus, this short list of what to watch for in the elections this week.  

• State efforts to limit EFCA. Voters in four states -- South Dakota, South Carolina, Arizona, and Utah -- will decide on proposed amendments to their state constitutions that would require a secret ballot vote in union elections.  These laws are, of course, directed at undermining EFCA, if it were to ever pass.  While the legal effect of these laws is questionable -- the NLRA usually preempts state law on the same subject -- the political effect could be significant.  The vote results will be an interesting gauge of popular sentiment about one of the core elements of EFCA:  card check.
• Key Senate races.  Two in particular stand out:  Colorado and West Virginia.  In both races, the Democratic candidate has opposed organized labor on EFCA.  Michael Bennet in Colorado has said he is opposed to EFCA in its current form.  Joe Manchin in West Virginia, who has earned the endorsement of the Chamber of Commerce, has also indicated opposition.  However, in both races, unions are spending significant sums to support the Democratic candidate.  If they win, EFCA's proponents could well push for a compromise version of the legislation.
• Union voter turnout.  Unions have spent a lot of money in this election cycle.  Among other things, that money has gone towards get out the vote efforts in key states and political races.  Voter turnout among union households, and the way in which those households vote, will be interesting to watch to determine the effectiveness of this spending.

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