Since organized labor couldn’t eliminate union elections altogether via the Employee Free Choice Act, the Obama administration now offers big labor the next best thing: 1). “Quickie elections” from the Labor Board and 2). Onerous reporting requirements to be mandated for employers and their labor consultants by the U.S. Department of Labor.

EVISCERATING THE EMPLOYER’S RIGHT TO FREE SPEECH

Each agency has announced these new rules and regulations, which are all likely to take effect shortly after the period for public comment ends on August, 22, 2011. No approval from Congress is necessary. Both the National Labor Relations Board as well as the U.S. Department of Labor already have full statutory authority to implement these new-revised rules and regulations. It clearly appears to be a gift by the Obama administration to unions, presumably in the hope that organized labor will return the favor with its support in the 2012 election.

The National Labor Relations Board will soon institute “quickie elections,” where an election conducted by the NLRB to determine a question of union representation will occur within 7-21 days after a union files a petition to request an election. Most employers will have little time to oppose unionization of their business. The employer’s exercise of its right to free speech, to oppose unionization, will be eviscerated.

Other anti-employer rules will be instituted as well: The Labor Board will require unions to serve Petitions on employers, putting employers at the union’s mercy from the very outset of the case. A Statement of Position form, requiring mandatory disclosures patterned after Federal Rule of Civil Procedure, Rule 26(a), will replace the Commerce Questionnaire. Only employer issues identified in the Position Statement will be adjudicated. In the Position Statement, the employer must disclose or waive any basis to contest the election. All challenges to voter eligibility will now only be resolved post-election, if at all. Only genuine issues of material fact will be adjudicated, and offers of proof will be required before a hearing is even granted. Stipulated election agreements will now defer all disputes first to the regional director, with Board review subsequent to the regional director’s decision, if at all. Employers must now provide voter eligibility lists containing the name, address, telephone number and email address for all eligible employees, along with each employee’s work location, shift and classification. Many of these documents must be filed and served within 48 hours.

The obvious solution is to be pro-active. Planning and preparation must begin now. If employers wait until the Notice of Election is received, it may be too late to act.

CHILLING THE EMPLOYER’S RIGHT TO FREE SPEECH

For those employers with the courage and financial resources to resist and speak out against the union, the U.S. Department of Labor has decided to re-write the reporting rules, to intimidate employers, their labor attorneys and labor consultants who attempt to assist them.

Sometime after August 22, 2011, the US Dept. of Labor will issue new reporting forms for use by employers (Form LM-10) and persuaders (Form LM-20). The stated purpose of the rewrite is to strictly limit the “advice” exemption to reporting of persuader activities. However, it would be easy to conclude that the real purpose seems to be state-sponsored intimidation of employers who oppose the union’s organizing agenda.

Under new regulations, if either an attorney or a consultant engages in any of the following activities, with the direct or indirect purpose of persuading employees to avoid unionization, then the terms and conditions of their agreement, all financial consideration for the same, together with the persuader activities themselves, must be identified, disclosed and made part of the public record for use by the union and its supporters:

• Disseminating written materials for employee use;
• Preparing a speech for presentation to employees;
• Providing audiovisual or multimedia presentations to employees;
• Preparing website content for employees;
• Planning or conducting individual or group employee meetings;
• Developing-administering employee attitude surveys concerning union awareness, sympathy, or proneness;
• Supervisor training for employee individual or group meetings;
• Coordinating or directing the activities of supervisors or employee representatives;
• Establishing or facilitating employee committees;
• Developing personnel policies or practices;
• Deciding which employees to target for persuader activity or disciplinary activity;
• Conducting seminars for supervisors or employer representatives.

In addition, reporting is also required if the attorney-consultant so much as simply supplies information to an employer in connection to a labor dispute, whether that information is obtained from research concerning the employees or labor organization, or any other source.

What is truly intimidating is that the U.S. Dept. of Labor’s reporting requirements are so broad as to be triggered by events totally unrelated to and disconnected from any actual, union organizing campaign. So, for example, if an outside consultant helps re-write an employee handbook, to include language stating the employer’s preference to remain union-free, under these new rules, the reporting requirements are triggered. If an employer hires a consultant to provide union avoidance training to management, or to simply perform a workforce assessment, the reporting requirements are triggered.

There is really no labor relations activity not included within these new reporting rules. In short, no employer may retain an outside third party to oppose unionization at any time, in any way, without telling the whole world about the intimate details of such an arrangement. Given the penalties for failure to make these reports, it is essential that the employer and persuader coordinate and plan for such activities in anticipation that such reports will be required.