As reported in two Constangy Client Bulletins, the NLRB and the Department of Labor have proposed two new rules that will drastically change the manner in which employers respond to union representation elections. The NLRB's proposed new rule provides for "quickie elections" and give unions immediate access to employee contact information. The DOL's proposed new rule provides a new, narrow interpretation of the "advice exemption" of the Labor Management Reporting and Disclosure Act, which would vastly expand the reach of "persuader" reporting obligations for employers and their labor relations consultants. The public was given time to submit comments on both of the proposed new rules. The period for comments on the NLRB's proposal to amend its rules for representation elections closed on August 22. By that deadline more than 30,000 comments had been made by businesses, union groups, legislators, academics, members of Congress and individuals. If nothing else, the 30,000 comments indicate there is strong disagreement over both the need for a rule change and the appropriateness of the Board's proposal. Business groups filed extensive comments objecting to the proposals, arguing the Board has moved too hastily on the proposals issued only two months ago, cannot demonstrate any need for changes in existing procedures, will severely limit an employer's opportunity to educate employees about unions, and will give an unfair advantage to unions during organizing campaigns. Union comments favored the NLRB proposal as a necessary and appropriate adjustment of Board procedures, arguing that the more time that elapses between a petition and an election, the more opportunities employers have to commit unfair labor practices which intimidate workers and convince them that supporting a union is not worth sacrificing their jobs. The Congressional response to the proposed rule change was divided along party lines. Republicans said the proposed rule changes would stack the deck against employers by limiting the time available for a response to union organizing. Democrats argued that "gamesmanship" and abusive employer behavior in election campaigns have undermined the NLRA, which was designed to promote and encourage collective bargaining.
The period for comments to the DOL's proposed rule change on persuader reporting expires on September 21. Major unions support the proposed changes, saying that employers should be required to disclose relationships with consultants and attorneys if they are persuading workers against joining unions. Law firms and business interests say the change could be a blow to labor law boutique firms and firms with large labor practices that may have to severely limit the advice they provide clients if they don't want to be saddled with the reporting requirements. They also say the new rule will threaten attorney-client privilege by requiring firms to disclose the names of clients and the advice they give on how the employer communicates with employees about the union. According to Michael Eastman, Executive Director for Labor Law Policy at the U.S. Chamber of Commerce, the proposed broader disclosure rules will "make it harder for employers to find someone to talk to for advice during a union campaign."