It's only Wednesday and already this is proving to be a potentially huge week for organized labor. In moves long sought by organized labor and opposed by business groups, the Obama Administration issued two proposed federal regulations this week that could significantly impact union elections.
First, on Monday, The Department of Labor ("DOL") issued a proposed regulation that would require employers to disclose more information about consultants they hire in response to union organizing campaigns. According to the DOL, the Labor-Management Reporting Disclosure Act which was enacted in 1959 currently is being applied too narrowly, because it only requires reporting of consultants who communicate directly with employees. Under the DOL's proposed new expanded definition of "advice," an employer would be required to report any arrangements with consultants who issue communications on behalf of the employer designed to "directly or indirectly" persuade workers concerning their rights to organize or bargain collectively. Under the proposed new rule, indirect persuasion could be construed so broadly as to require disclosures of attendance at "union avoidance" seminars and conferences offered to employers by lawyers or labor consultants. The proposed regulation is open for public comment until August 22, and the DOL will then decide whether to make the new rule official.
In the second, bigger coup for organized labor this week, the NLRB yesterday issued proposed regulations that are intended to substantially shorten the time period between when a union files a petition for a union election and the time the election is held. The proposed "quickie elections" regulation, as they are referred to by the lone Republican Board Member Hayes, would give unions an advantage in organizing by giving management less time to respond to a union campaign. If adopted after a public notice-and-comment process, the proposed rules would include changes in the union election process such as:
- Allowing for electronic filing of election petitions and other documents
- Requiring parties to identify issues and describe evidence soon after an election is filed to facilitate resolution and eliminate unnecessary litigation
- Deferring litigation of most voter eligibility issues until after the election
- Requiring the employer to provide a final voter list in electronic form soon after the scheduling of an election, including voters' phone numbers and email addresses when available
- Making Board review of post-election decision discretionary, rather than mandatory
Currently, the median time between when a union files a petition and when an election is held is 38 days. The NLRB says it cannot calculate how much shorter the time could be under the new rules. However, dissenting Member Hayes predicts that elections would be held within 10 to 21 days after the petition's filing. "Make 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," Member Hayes wrote. The DOL's and NLRB's proposed regulations are sure to be the center of heated debates between organized labor and business groups during the next 60 days. Given the Obama Administration's distinctly pro-labor bent, however, the debate will likely fall on deaf ears.