Tag: Unions

Sixth Circuit Upholds Michigan Law Which Bars Schools from Collection Union Dues

Barnes & Thornburg

The 6th Circuit in Bailey v. Callahan, decided Thursday, May 9, has vacated an injunction entered by the District Court and has upheld Michigan’s Public Act 53 which prohibits Michigan’s public schools from assisting in the collection of dues and service fees for unions. The Court summarized the Union’s First Amendment challenge to the statute in this way:

“Unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.”

The problem with that, according to the majority opinion, is that this argument has already been rejected by the U.S. Supreme Court in Ysursa v. Pocatello Education Association, 555 U.S. 353 (2009). Moreover, the Court determined that Public Act 53 does not restrict speech and is not designed to specifically suppress speech by teachers’ unions. Finally, the Court, in two paragraphs, rejected the plaintiff’s equal protection argument.

The opinion incited a lengthy dissent from Circuit Judge Jane Stranch who contended that the majority “mischaracterizes the First Amendment interests at stake, glosses over key distinctions the Supreme Court requires us to observe, and averts its gaze from Act 53’s blatant viewpoint discrimination.”

With a 2-1 decision and a lengthy dissent on a Constitutional claim, one would think this is headed for an en banc determination by the full Sixth Circuit.

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Circuit Court Upholds Michigan Public Act 53: Public Schools Prohibited from Collecting Union Dues

Varnum LLP

Responding to a challenge to the constitutionality of Michigan Public Act 53, which prohibits public schools from collecting union dues from employees, the Sixth Circuit ruled that the act is constitutional. The result of this ruling is that, at this point, public schools are statutorily precluded from collecting dues for the union under any bargaining agreement that was entered into, renewed or extended after March 16, 2012.

The plaintiffs, who are school unions and union members, argued that the act violates their First Amendment and Equal Protection rights.  The district court, agreeing with the plaintiffs, had issued a preliminary injunction barring enforcement of the law.  The Sixth Circuit reversed the district court, dissolved the injunction and remanded the case “for further proceedings consistent with this opinion.”  It is unclear whether any viable challenge to the statute remains for the district court to address or whether dismissal of the claim is now in order.

The 6th Circuit ruled that Public Act 53 does not violate the First Amendment.  The plaintiffs argued that unions need membership dues to engage in speech and if the public schools don’t collect the union dues for them, the unions will have a hard time collecting the dues themselves.  Therefore, Public Act 53 violates the unions’ right to free speech.  The majority opinion stated that the First Amendment prohibits government from limiting the freedom of speech, but it does not give the right to use government payroll systems for the purpose of obtaining funds for speech.  The court concluded that Public Act 53 does not restrict speech.  It “merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues.”

Similarly, the Court decided that the plaintiffs’ Equal Protection claim fails.  The plaintiffs argued that Public Act 53 violates the Equal Protection clause of the 14 Amendment because it applies only to unions that represent school employees and not to other public employers.  The court held that there is a legitimate interest in this classification.  That is, the Michigan legislature “could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers.”

It remains to be seen whether the Sixth Circuit’s opinion ends the debate or if there will be continued challenge.

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New NLRB Rule Speeds Union Elections

An article published recently in the National Law Review by John A. Ferguson Jr., Robert S. Nichols, Nancy M. O’Connor, and Lon R. Williams Jr. of Bracewell & Giuliani LLP covered the New Union Election Rules by the NLRB:

Time and Procedures for Employers to Respond to Union Election Petitions Are Eliminated or Reduced

Today the National Labor Relations Board (NLRB) published in the Federal Register its new Rule that will change procedures for private sector union representation elections. The Rule becomes effective April 30, 2012. The Rule dramatically shortens the period between the filing of an election petition and the election unless the parties stipulate to the election date. The Rule also effectively eliminates pre-election challenges to NLRB rulings on such critical issues as the appropriate bargaining unit and eligible voters.

While the NLRB defends these changes predicting they “will reduce unnecessary litigation in representation cases and thereby enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation,” the sure effect of these changes will be to reduce the time period—and thus the opportunity—for employers to communicate their views on unions with their employees and to respond meaningfully to union campaign efforts before an election is held.

Which Election Procedures Will Be Changed?

The specific amendments to the NLRB’s current rules of procedure include:

  • Authorizing NLRB hearing officers in pre-election hearings to limit evidence on any individual eligibility issue.
  • Expanding these hearing officers’ discretion over post-hearing briefs, including limiting the subjects that can be addressed, the amount of time for filing, and also determining whether a brief can be filed at all.
  • Eliminating the right to request pre-election review of a Regional Director’s rulings, requiring the request for review to be consolidated with any post-election requests for review of the Regional Director’s rulings on challenges and objections.
  • Eliminating the current 25-day waiting period between the Regional Director’s post-hearing Decision and Direction of Election and the election.
  • Limiting special appeals from rulings of the NLRB hearing officer or Regional Director to “extraordinary circumstances where it appears that the issue will otherwise evade review.”
  • Subjecting the current right to appeal a Regional Director’s post-election rulings on potentially outcome-determinative challenges and objections to the NLRB’s discretion.

What Changes That the NLRB Had Initially Proposed Are Not Included in Its New Rule?

The NLRB’s Final Rule implements only some of the more dramatic procedural changes that the NLRB had originally proposed in June 2011. Some of those proposed changes which are not included in the current Rule would have:

  • Required employers to directly provide the union—within two days of the Regional Director’s decision—each eligible employee’s name, telephone number, e-mail address, work location, shift and classification. Currently, only the employee’s name and home address are required to be provided by the employer to the Regional Director within seven days of the decision. The Regional Director then makes that information available to the union.
  • Set the pre-election hearing within seven days of the filing of the election petition and required that the non-petitioning party, such as an employer, submit a written statement of position with all substantive arguments before that hearing or risk waiving those arguments on appeal.

Has the NLRB’s Final Rule Been Challenged?

Yes.

  • On December 1, 2011, the U.S. House of Representatives passed theWorkforce Democracy and Fairness Act, which would allow a union representation election only after 35 days from the filing of the petition and would also require a two-week waiting period before the first hearing could be held on that petition.
  • On December 20, 2011, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a lawsuit in the United States District Court for the District of Columbia challenging the Rule, claiming that employers will be denied a fair opportunity to explain to employees the consequences of unionizing.

© 2011 Bracewell & Giuliani LLP

Divided NLRB Issues Controversial Expedited Election Rules

Posted in the National Law Review an article by attorneys Thomas E. Obenberger and Scott C. Beightol of Michael Best & Friedrich LLP regaring  the National Labor Relations Board recent vote which reversed decades of precedent and practice:

 

On December 22, 2011, the National Labor Relations Board (the “NLRB” or “Board”) published final rules (76 Fed. Reg. 80138) adopted by the Board on a split 2-1 vote which reversed decades of precedent and practice as to how the Board will process representation proceedings. While the final rules place into effect only about one-half of the amendments proposed in its June 22, 2011, Notice of Proposed Rulemaking (76 Fed. Reg. 36812), leaving the others for “further deliberation,” the amendments adopted by the Board dramatically change the substance, timing and procedures involved in union organizing campaigns and representation proceedings, and substantially alter the rights of the parties involved. The amendments adopt many of the “reforms” sought by organized labor through its previously unsuccessful efforts to secure passage of the Employee Free Choice Act. The following comments highlight some of the major changes made by the Board to representation case processing.

While the rules, scheduled to become effective April 30, 2012, have already been challenged in court, it is important for employers to evaluate where they are in terms of their labor relations and union free policies, how well prepared they are to respond to union organizing activities which conceivably could result in a representation election being conducted between 10 to 20 days after the filing of a petition, and how best to communicate with employees on an ongoing and expedited basis.

Among the more significant changes are those relating to initial stages of processing of a representation petition. Changes impact the all-important determination of the scope and composition of an appropriate bargaining unit; inclusions in or exclusions from the voting unit of various individuals or classifications of employees; and, rights to have decisions of an NLRB Hearing Officer or Regional Director reviewed and determined prior to the conduct of an NLRB election.

Significantly, the rules narrow the scope of initial hearings conducted before a Regional Office Hearing Officer following the filing of a petition. The rules generally prevent litigation and pre-election determination of the nature and scope of the appropriate bargaining unit, and inclusions or exclusions of individuals or classifications of employees from that unit, leaving such issues for a post-election hearing, with questioned voters being permitted to vote subject to challenge.  Eligibility issues would be combined in a single post-election hearing also encompassing post-election challenges and objections. Based on the amendments, the only issues generally resolved at a pre-election hearing are to be whether a question of representation exits, and whether there exists any bar to the conduct of the election.

This presents a significant issue for employers, many of whom currently employ numerous individuals who may or may not be supervisors as defined by the National Labor Relations Act, or who may work in classifications which may or may not share a community of interest with a petitioned for unit.  Inclusion or exclusion of such individuals or groups from the voting unit can present serious ramifications. For example, an employer who employs a number of lead persons or working foremen would be found to have committed an unfair labor practice and interfered with the representation election, resulting in a set aside, if those individuals, subsequently found to be statutory supervisors, would have been permitted to participate in the election as eligible employees. Likewise, an employer who prohibits the participation of such individuals, thinking that they may be statutory supervisors, would be guilty of interfering with the protected rights of those individuals if they were found to be eligible and not supervisory employees.

Other than observing that a Regional Director or Hearing Officer might choose, in their discretion, to consider such issues in a pre-election hearing, the Board offers little comfort to employers faced with this dilemma. In fact, in its published comments accompanying the amended rules (76 Fed. Reg at p. 80165), the Board acknowledges that it has previously held in Barre-National, Inc., (1995), 316 NLRB 887, that a Hearing Officer erred by preventing an employer from presenting evidence at a pre-election hearing regarding the eligibility of 24 group leaders (just under 10% of the total unit) to vote in an election directed in a unit of production, maintenance and warehouse employees. The Board brushed off this issue, stating “The Board will no longer follow Barre-National under the amended rules.” (76 Fed. Reg. at p. 80165).  Employers are apparently left, under the amended rules, with trying to persuade a Hearing Officer or Regional Director to take discretionary evidence as to eligibility or exclusion of employees even if the number of employees involved might significantly change the size or character of the voting unit.

Just as importantly, the amended rules severely restrict the rights of an employer to appeal adverse Regional Director or Hearing Officer decisions to the full Board for review. In the past, post-election regional determinations as to challenges and election objections were appealable, as a matter of right, to the NLRB. Such determinations, now including pre-election determinations, as to which no separate right of appeal exists, will only be considered by the Board on appeal in its discretion, and then only if they present an issue of first impression or if there exists a conflict in the law.

Among other noteworthy amendments, the Board has now eliminated the previous 25 day waiting period for an election to be scheduled following a direction of election by a Regional Director, and, in a major change, the terms of a “stipulation” agreement for an election can no longer provide for final resolution of post-election challenges and objections by the NLRB, leaving such final determination to a Regional Director – the same as if the parties were to have entered into a “consent” election agreement, rather than the previously more widely favored “stipulation” form of agreement.

The effect of the amendments was well stated in the dissenting comments of Board Member Hayes upon publication of the then proposed rule changes (76 Fed. Reg. at 36831):

What is certain is that the proposed rules will (1) substantially shorten the time between the filing the petition and the election date, and (2) substantially limit the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct. Thus, by administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought after “quickie election” option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. 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.

© MICHAEL BEST & FRIEDRICH LLP 

NLRB Approves Significant Changes to Representation Election Procedures

Recently published  in The National Law Review an article byJ. Kevin Hennessy, Kenneth F. Sparks, Mark L. Stolzenburg and Lyle S. Zuckerman of Vedder Price P.C. regarding NLRB’s vote at a public meeting on November 30, 2011:  

In June 2011, the National Labor Relations Board issued a Notice of Proposed Rulemaking that sought to significantly change the procedures for representation elections under the National Labor Relations Act. The purpose of the Proposed Rulemaking was to limit the time that an employer has to express its views to employees regarding unionization during a campaign. The NLRB held two days of hearings in July 2011 regarding the proposed rule and received over 65,000 written comments.

At a public meeting on November 30, 2011, by a 2-1 party-line vote, the NLRB voted in favor of a resolution to adopt many provisions of the rule proposed in June. While some of the more controversial provisions were not included, the amendments that the NLRB approved in its November 30 resolution will quicken the election process.

That said, the Board still must draft a final rule and vote on it. However, with the recess appointment of Board Member Craig Becker expiring on December 31, 2011, the Board will lose its three-member quorum and therefore will be unable to adopt rules or otherwise conduct business in any significant manner after that date. Senate Republicans have announced that they will remain in session between now and the 2012 elections, depriving President Obama of the ability to make any additional recess appointments to the NLRB. As a result, employers should expect that the Board will move quickly to prepare and vote on a final rule within the next few weeks.

The resolution that the Board adopted on November 30 contains six procedural amendments to be included in the final rule regarding changes to the election process:

1.  The final rule would amend the existing rule regarding the purpose of pre-election hearings, making them for the sole purpose of determining “whether a question concerning representation exists that should be resolved by an election.” The primary effect of this rule is to preclude litigation about most voter-eligibility issues, such as supervisory status, during pre-election hearings. It is unclear whether this would preclude parties from litigating the overall appropriateness of the petitioned-for bargaining unit. The resolution appears to be more restrictive than the rule proposed by the Board in June 2011, which would have allowed the parties to litigate eligibility issues in a pre-election hearing if those issues involved at least 20 percent of the proposed voting unit.

2.  Under current rules, parties may file post-hearing briefs as a matter of right. The amended rule leaves to the discretion of the hearing officer whether post-hearing briefs will be permitted. In most cases, the parties will be allowed to make closing arguments at the end of the hearing, and briefs will be permitted only where unique or complicated issues are involved.

3.  Current rules require parties to file separate appeals to seek Board review regarding pre-election and post-election issues. The amended rules eliminate all pre-election review by the Board, and will consolidate all issues for review, including election objections, in a single, post-election appeal. According to Chairman Pearce, this will avoid appeals of issues “that become moot as a result of the election.”

4. The fourth amendment eliminates the 25- to 30-day waiting period between issuance of a Regional Director’s Decision and Direction of Election and the scheduling of an election. The purpose of this waiting period is to allow parties to request review of the Regional Director’s decision by the Board, a process that is eliminated by the third amendment.

5. The fifth amendment would limit to “extraordinary circumstances” occasions when requests for special permission to appeal to the Board would be granted. Under this standard, the Board would entertain pre-election appeals only when the issue would “otherwise evade review.”

6. Currently the Board must consider any post-election requests for review. The sixth amendment would make Board review of post-election appeals discretionary, permitting the Board to summarily dispose of appeals “that do not present a serious issue for review.” This is the same standard that currently exists for pre-election reviews.

Several components of the rule proposed in June were not included in the Board’s resolution adopted on November 30. Those are (i) inclusion of employee e-mail address and telephone number on voter-eligibility lists provided to the union before the election, (ii) reducing the time that an employer has to provide the voter eligibility list to the union from seven to two days, (iii) requiring parties to state their positions regarding pre-election issues prior to the hearing and (iv) requiring an employer to provide a “preliminary voter list” before the pre-election hearing. However, on November 30, the Board reserved its right to continue considering these elements of the June rulemaking session.

As NLRB Member Brian Hayes noted at the November 30 public meeting during which the Board voted to adopt the resolution, the median time between the filing of a petition and an election in 2010 was 38 days, and about 95 percent of all elections occur within 56 days. The time target in most cases is for an election to occur within 42 days of the filing of a petition. The amendments approved in the Board’s resolution may have little effect on elections in which the parties agree about the composition of the voting unit and other details without a hearing. However, where there is a dispute over the eligibility of certain voters, elections will occur much more quickly than in the past. In addition, the amendments may increase uncertainty for employers during campaigns. Issues of supervisory status will not be resolved until after an election is over. As a result, employers may be placed at increased risk of unfair labor practice allegations for the conduct of individuals who were not deemed supervisors until long after a campaign concluded.

As a result of these rules that the NLRB is soon to adopt, employers should review their contingency plans for organizing drives and give serious thought to the content of condensed campaigns. Shorter election campaigns may soon be a reality.

© 2011 Vedder Price P.C.

Department of Labor Revises Conflict Disclosure Requirements for Labor Union Officials

Barnes & Thornburg LLP‘s Labor and Employment Law Department recently posted in the National Law Review an article about the United States Department of Labor’s Office of Labor-Management Standards adopted a final rule revising the information that union officials must disclose on Form LM-30, the Labor Organization Office and Employee Report.:

 

 

On Oct. 26, 2011, the United States Department of Labor’s Office of Labor-Management Standards adopted a final rule revising the information that union officials must disclose on Form LM-30, the Labor Organization Office and Employee Report. The new rule reverses the rule published by the agency in 2007 that significantly expanded the financial disclosure requirements of union officials. Effective Nov. 25, 2011, union officials are now required to disclose only payments and interests that involve “actual or likely” conflicts between the official’s personal financial interests and his or her duties to the union. The DOL explains that such conflicts include “payments, interests and transactions involving the employers whose employees the union represents or actively seek to represent, vendors and service providers to such employers, the official’s union or the union’s trust and other employers from which a payment could create a conflict.” The new rule applies to reports required by union officials with fiscal years beginning on or after Jan. 1, 2012.

Use of Form LM-30 for reporting purposes began in 1963 pursuant to Section 202 of the Labor-Management Reporting and Disclosure Act. Although the reporting requirements for Form LM-30 were significantly expanded in 2007, the DOL had issued a non-enforcement policy in 2009 that allowed filers to use either the 2007 expanded version of Form LM-30 or the 1963 version of the Form to disclose potential conflicts.

© 2011 BARNES & THORNBURG LLP

NLRB Delays Implementation of Mandatory Notice Posting Rule

Recently posted in the National Law Review  an article regarding the NLRB postponing the date for employers to post notices informing employees of their rights to join a union  by Aaron J. Epstein of Andrews Kurth LLP:

 

Last week, the National Labor Relations Board (NLRB) postponed the effective date for its rule requiring most U.S. employers to post workplaces notices informing employees of their rights under the National Labor Relations Act (NLRA), including the right to join a union. The NLRB published the new rule on August 31, 2011, and initially set an effective date of November 14, 2011. However, in the face of two lawsuits challenging the validity of the new rule, and citing the need to conduct enhanced education and outreach, the NLRB has delayed the effective date until January 31, 2012.

Below is a brief overview of the new rule and the steps employers must take to comply.

To Whom the Rule Applies

The notice posting rule applies to all employers covered by the NLRA, whether or not they have a unionized workforce. NLRA coverage is intentionally broad and reaches almost all private sector employers. In the case of retail businesses, the NLRB’s jurisdiction covers any employer with a gross annual volume of business of $500,000 or more. The NLRB’s non-retail jurisdictional standard extends to most other employers. It is based on the amount of goods sold or services provided by an employer out of state, called “outflow,” or goods or services purchased by an employer from out of state, called “inflow.” Under this standard, any employer with an annual inflow or outflow of at least $50,000 is subject to the NLRA.

What the Rule Requires

The NLRB’s new rule dictates that employers post an 11-inch-by-17-inch notice detailing employee rights under the NLRA in a conspicuous place where other notifications of workplace rights and employer policies and rules are customarily posted. Employers are required to take reasonable steps to ensure that the notice is not altered, defaced, covered, or otherwise rendered unreadable. Additionally, employers who post personnel policies or workplaces notices on a company intranet or internet site must also post the NLRA notice on those sites, or they can provide a link to the notice on the NLRB’s website with the title “Employee Rights Under the National Labor Relations Act.”

Copies of the notice, in English and Spanish, are available at www.nlrb.gov or at any of the agency’s regional offices. The notice must be posted in English and in another language if at least 20 percent of employees are not proficient in English and speak the other language. The NLRB will provide translations of the notice, and of the required link to the NLRB’s website, in the appropriate languages. If a workforce includes two or more groups, each constituting at least 20 percent of the workforce, who speak different languages, an employer must post the notice in the language spoken by the larger group, and then may either post the notice in the language(s) spoken by the other group(s) or, at the employer’s option, distribute copies of the notice to those employees in their language(s). If such an employer is also required to post the notice electronically, it must do so in each of those languages.

Failure to Comply with the Rule

Failing to post the notice may, in and of itself, be treated as an unfair labor practice and subject an employer to remedial measures. The NLRB may also extend the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. Finally, if an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case dealing with other alleged violations of the NLRA.

© 2011 Andrews Kurth LLP

Recent NLRB Actions: Notice Posting Requirement, Proposed Election Rules and New Case Law Tilt Toward Organized Labor

Recently posted in the National Law Review an article by  Irving M. Geslewitz of Much Shelist Denenberg Ament & Rubenstein P.C.  regarding NLRB published proposed rules:

Many recall the push a few years ago to enact a legislative bill, the Employee Free Choice Act, that would have required an employer to recognize and bargain with a union without a secret ballot election if the union could present cards signed by a majority of the employer’s workers indicating their wish to have a union. That bill, strongly favored by organized labor, never got enough traction to get passed into law.

Proponents of the measure turned to non-legislative approaches to alter what they saw as a stacked deck against unions that accounted, in part, for their poor record in union elections. With the advent of a newly constituted National Labor Relations Board (NLRB) appointed by the Obama administration, some of that hope may have been fulfilled. Through its rule-making authority, the NLRB recently has imposed on employers a new notice posting requirement intended to heighten employee awareness of their collective bargaining rights, and is also proposing a new set of election rules that should improve unions’ chances in elections. In addition, through its administrative case adjudication authority, the NLRB has issued three case decisions reversing precedent—one that makes it easier for a union to choose the unit of employees in which an election will be conducted, and two that make it harder for employees to oust an incumbent union.

These developments come on the heels of the controversial legal action by the NLRB’s Acting General Counsel seeking to enjoin Boeing from opening a new non-union manufacturing facility in South Carolina, as well as a flurry of unfair labor practice complaints against employers that discipline employees in connection with the use of social media (see related article on the NLRB’s recent guidance regarding social media in the workplace). Together, these actions have some in the business community complaining of a decidedly pro-union tilt by the NLRB.

The New Posting Rule

The NLRB has issued a final rule requiring most private-sector employers, beginning on November 14, 2011, to notify employees of their rights under the National Labor Relations Act (NLRA) by posting a standard notice. Now available on the NLRB website and from NLRB regional offices, the notice informs employees that they have the following rights:

  • To organize a union to negotiate with their employer concerning their wages, hours and other terms and conditions of employment;
  • To form, join or assist a union;
  • To bargain collectively through representatives of their own choosing for a contract with their employer setting wages, benefits, hours and other working conditions;
  • To discuss their terms and conditions of employment or union organizing with their coworkers or a union; and
  • To strike and picket under certain circumstances.

The notice also advises employees of their right to choose not to engage in any of these activities.

The posting requirement applies to all but the smallest of private-sector employers, but not to agricultural, railroad and airline employers that are excluded from coverage by the NLRA. Posting is required whether or not there is a union in the employer’s workplace. In addition to a physical posting, every covered employer must post the notice on an Internet or Intranet site if personnel rules and policies are customarily available there.

Failure to post the notice may be treated as an unfair labor practice under the NLRA. In addition, if there are other unfair labor practice allegations against the employer, the NLRB may extend the six-month statute of limitations for the filing of those charges. Also, a failure to post may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

The NLRB justifies its actions by claiming that many employees are not aware of their rights under the NLRA and that the new rule is in line with other labor laws that impose posting requirements. Opponents argue, however, that such a notice posting (previously required only in limited situations, such as when an election is scheduled) is unnecessary and promotes unionization through its heavy emphasis on the right to unionize and collectively bargain.

Proposed Rule Changes to NLRB Election Procedures

The NLRB has published proposed rules that would significantly accelerate the union election process. While not explicitly stated, the likely combined effect of the rule changes would shorten the time between the filing of an election petition and the election itself by more than half. Under the proposed rules, employers could expect the NLRB to conduct elections within 10 to 21 days after a petition is filed, rather than the current average of 31 days.

Among the more significant changes are the following:

  • Regional NLRB offices typically conduct pre-election hearings within 14 days after a petition is filed. Under the new rules, pre-election hearings would be held within seven days after an election petition is filed.
  • Employers are not currently required to identify every issue prior to the pre-election hearing. Under the new rules, employers would be required to identify all issues regarding unit scope, voter eligibility and supervisory issues before the pre-election hearing, at the risk of waiving issues not raised at the first opportunity.
  • Under current practice, pre-election hearings can involve disputes over whether certain employees are eligible to vote, such as whether an individual is a supervisor. Under the proposed rules, however, disputes over the eligibility or inclusion of less than 20% of the employees in the proposed unit will be deferred to post-election proceedings.
  • Review of pre-election hearing decisions now takes place before the election is conducted. Under the proposed rules, such review would be deferred until after the election.
  • Currently, employers must provide the NLRB with a list of eligible voters and their home addresses (used by the union to communicate with voters) within seven days after the NLRB Regional Director issues an order setting the election. Under the proposed rules, not only would that period be reduced to two days, but also the employer would have to provide the e-mail addresses and telephone numbers of employees eligible to vote in the election.

In effect, the proposed new rules would dramatically alter the landscape in NLRB-conducted union elections. By significantly shortening the pre-election period, the rules would hamper the employer’s ability to contest the scope of the unit of employees selected by the union for inclusion in the election. But of even more importance, the new rules would shorten the timeframe available to employers to communicate with employees on the wide variety of issues that arise in a union organizing campaign, such as the reasons why voting for the union may not be in their best interests. Opponents, who include dissenting NLRB Board Member Brian Hayes, contend that the real objective of the proposed new rules is to make it easier for unions to win elections by handicapping the employer’s ability to oppose them.

At the same time, the U.S. Department of Labor (DOL) has proposed a new rule that also would negatively affect an employer’s ability to communicate with employees in union elections. The Labor-Management Reporting and Disclosure Act (LMRDA) already requires reporting of arrangements, receipts and expenditures derived from providing so-called “persuader activity” services. Historically, attorneys providing legal advice regarding lawful employer communications to employees have been exempt from this requirement. The DOL’s proposed rule, however, would severely curtail this exception, rendering such attorney advice as “reportable” under the law.

Recent NLRB Decisions Reversing Case Precedent

In addition to having rule-making authority, the NLRB acts as a review body that establishes case law interpreting the NLRA. In three decisions issued on August 26, 2011, the NLRB set new standards favoring organized labor—each time over a dissent.

Perhaps the most wide-ranging of these decisions is Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83, in which a union sought an election at a non-acute care nursing home limited to certified nursing assistants. The employer argued that the unit was too small and should include cooks, schedulers, recreational staffers and other workers. Reversing case precedent, the NLRB disagreed. But the NLRB also indicated that in any case in which an employer challenges a petitioned-for unit as inappropriate because it does not contain additional employees, the burden is on the employer to demonstrate that the employees excluded by the petition share an overwhelming community of interest with the included employees. This decision may make it significantly easier for unions to organize sub-units of an employer—such as employees of one department—as opposed to an entire facility.

The other recent decisions make it harder for employees to oust incumbent unions. In Lamons Gasket Company, 357 NLRB No. 72, the NLRB ruled that if an employer voluntarily recognizes a union as a collective bargaining representative for a particular unit of the workforce based on a card check, then the NLRB would observe a strict bar of six to 12 months after the union’s first bargaining session during which it would not consider a petition by employees for an election to decertify the union or otherwise attempt to oust the union. This action reversed a 2007 decision holding that employees could ask for such an election within 45 days of management’s recognition of the union. Similarly, in UGL-UNICCO Service Company, 357 NLRB No. 76, the NLRB overruled a prior decision that had created a small window—immediately after the sale or merger of a business—during which the incumbent union’s status could be challenged if 30% of employees showed interest. Now, an incumbent union will have six to 12 months after the parties’ first bargaining session to negotiate with the successor company before such a challenge could be mounted.

© 2011 Much Shelist Denenberg Ament & Rubenstein, P.C.

NLRB Permits Micro-Units In Specialty Healthcare Decision

Recently posted in the National Law Review an article by Mark A. Carter of Dinsmore & Shohl LLP regarding NLRB’s controversial decision to overturn 20 years of precedent:

In one of its most controversial decisions to date, the National Labor Relations Board (“NLRB”) has overturned 20 years of precedent and will now permit unions to organize a minority share of an employer’s workforce. As a result of this decision, organized labor will be able to establish footholds in businesses where the majority of the employees may not desire to be represented by a union. 

On August 26, 2011 the NLRB released its decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). In Specialty Healthcare, the United Steelworkers petitioned for a representational election in a bargaining unit that was very distinct from the typical “wall to wall” unit. For decades, the NLRB has concluded that where employees share a “community of interest” that the appropriate bargaining unit in a representational election should include all of the employees of the employer who are similarly situated. Typically this type of unit is called a “wall to wall” bargaining unit and its common description includes all “production and maintenance” workers employed by the employer excluding clerical, administrative and security employees. This scope of employees insured that the union would be elected where the majority of the employer’s employees desired to be represented by a union, but that where a majority of the employees did not desire to be represented, their terms and conditions of employment, and their workplace, would not be impacted by the presence of a labor union. Moreover, the “wall to wall” unit insured that there was not a fracturing of the employer’s workforce where several unions represented several small groups of employees making the collective bargaining unmanageable for any of the parties.

This logical and longstanding policy of Democratic and Republican majority labor boards has been scuttled.

In Specialty Healthcare, the employer operates a nursing home and rehabilitation center in Mobile, Alabama. Among the job classifications – or job titles – at this facility is a “CNA”, or, certified nursing assistant. Rather than seeking to represent all of the employer’s employees, the union petitioned for a bargaining unit consisting only of the CNAs. The employer objected on the basis of the NLRB’s decision in Park Manor Care Center, 305 NLRB 872 (1991) and the Board’s longstanding practice of not certifying “fractured” units but insisting that all of the employer’s employees who shared a community of interest comprised an appropriate bargaining unit. The NLRB, through a regional director, initially concluded that this petition was appropriate and directed an election be held amongst only the employer’s full and part time CNAs. The employer appealed this decision, in essence, by asking the NLRB to review the regional director’s decision. The NLRB not only accepted this obligation but requested briefs from interested parties regarding whether its decision inPark Manor and its longstanding practice of certifying only bargaining units of all of the employees with a community of interest should remain the law. Significantly, the NLRB also requested interested parties’ positions regarding whether its decision should have application in all industries rather than just the health care industry which maintains unique standards under the National Labor Relations Act.

After inviting and, presumably, considering this argument, the NLRB reversed the Park Manor decision and will now permit appropriate units to be petitioned-for and certified even when larger and “more appropriate” bargaining units exist in the employer’s workforce.

“Nor is a unit inappropriate simply because it is small. The fact that a proposed unit is small is not alone a relevant consideration, much less a sufficient ground for finding a unit in which employees share a community of interest nevertheless inappropriate.”

To that end, the NLRB wrote that it will focus on the community of interest of the employees, the extent of common supervision, interchange of employees, geographic considerations “etc., any of which may justify the finding of a small unit.” An employer can challenge the determination regarding the composition of the unit, but the Board will now require that the burden to establish that a bargaining unit is not appropriate will be an “overwhelming” community of interest between the employees in the petitioned-for unit and the larger workforce.

“…when employees or a labor organization petition for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or other similar factors) and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit…”

The NLRB did agree that cases may exist where the petitioned-for unit inappropriately “fractured” the workforce. For example, had the union petitioned only for CNAs working the night shift vs. all employees, or only CNAs working on the first floor and not the second floor, but it is eminently clear that the Board will direct elections and certify bargaining units of employees simply because they have one job title or job function and permit the union to ignore the other employees with distinct job titles or functions even when that means that the minority of the employees overall support the union. The reality is that all of the employees will have to deal with the union.

Employers should take no stock in some press suggestions that this decision has limited application to the health care industry. There is no holding or assurance that the rule is limited to the health care industry merely because the case arose within the health care industry. Rather, employers will be well served to heed the opening of Member Brian Hayes dissent which is absolutely accurate:

“Make no mistake. Today’s decision fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board’s jurisdiction.”

© 2011 Dinsmore & Shohl LLP. All rights reserved.