Webcast Focuses on NLRB’s Proposed Changes on Union Activity

By Kathy Gurchiek Aug 3, 2011

HR professionals heard dire warnings during a Society for Human Resource Management (SHRM) webcast July 28, 2011, about a strengthened union environment that would undermine employers if regulatory changes from the National Labor Relations Board (NLRB) and the U.S. Department of Labor (DOL) are approved.

The webcast looked at two union-related regulations—the NLRB’s so-called “quickie election” proposed rule and the DOL’s “persuader activity” proposal.

The first would, among other things, shorten the election period and give employers less time to communicate their views on unionization to employees.

The second would change the interpretation of the “advice” exemption, which applies to employers’ and other third parties’ communications to employees about their right to organize and bargain collectively. It would broaden the scope of the types of activities employers must disclose during a union campaign.

The webcast featured attorney and former NLRB chairman Peter C. Schaumber and attorney G. Roger King of law firm Jones Day. The program qualifies for 1.5 strategic management credits toward PHR and SPHR recertification.

The 90-minute program centered mostly on the changes to union elections that the NLRB proposed July 21, 2011, but included comments about the DOL’s June 20, 2011, proposed regulation affecting “persuader activity.

In addition, it looked at the board’s makeup and how it has become more politicized over the years as presidents appoint, with Senate approval, members who reflect an administration’s political leanings. NLRB members serve five-year terms.

Schaumber served on the NLRB from 2002 to 2010 as an appointee of President George W. Bush and as board chair from 2008-2009. Prior to his appointment, he was a labor arbitrator serving on a number of industry panels and national arbitration rosters.

King represents employers in collective bargaining negotiations; grievance and arbitration matters; and issues that arise under the National Labor Relations Act, state and federal equal employment statutes, the Americans with Disabilities Act and the Family and Medical Leave Act.

Both men have been speaking out against the NLRB proposal. Schaumber shared his personal concerns before the House Education and Workforce Committee on July 7, 2011. King represented SHRM at a July 19 public hearing before the NLRB.

In his July 28 webcast remarks, Schaumber said the NLRB is trying to enact “EFCA Light,” a reference to the union-backed Employee Free Choice Act (EFCA) that would change how employees vote for union representation. EFCA stalled in the Senate in 2009.

“The current board is animated by concern [that] organized labor has lessened in the private sector,” and is working to change that with these regulations, Schaumber said during the webcast.

He described the current board as “highly partisan and in favor of organized labor … making [union] organizing easier.” Unions currently win about 67 percent of election votes, said Schaumber, who thinks the NLRB’s underlying reason for the rule change is to increase unions’ win rate.

King, noting that the NLRB has issued nine separate initiatives in the last 10 months, called them “a tsunami of regulations.”

The NLRB is made up of chairman and union attorney Wilma Liebman, Democrat; union attorney Craig Becker, Democrat; labor lawyer Mark Pierce, Democrat; and congressional staff counsel Brian Hayes, Republican, who voted against the proposed changes. Terence F. Flynn, Republican, has been nominated to fill the seat of Schaumber, also a Republican, whose term expired August 2010. Liebman’s term expires Aug. 27, 2011; Becker’s term expires in fall 2011. Both could be reappointed.

Schaumber and King think the current NLRB is strengthening union power by making it easier to organize unions, allowing union access to employer premises, restricting employer speech, and streamlining a process that will lead to speedier union elections.

The NLRB’s and DOL’s intent, King said, is “chilling employer free speech.”

The speakers also decried what they called the NLRB’s attempts to sanction micro bargaining units, which are not mentioned in the NLRB proposed changes. Micro unions would allow as few as two employees working the same job to be considered a bargaining unit, making it easier for workers to organize. This means “the employer will have to negotiate and apply multiple collective bargaining units,” Schaumber said.

However, the NLRB said its amendments are intended “to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.”

Among the proposed changes:

  • Pre-election request for review would be eliminated, along with the delay of elections that can accompany such reviews. Elections typically are delayed 25 to 30 days to allow parties to seek NLRB review of regional director rulings, Schaumber said.
  • Curtails the ability if an employer to litigate issues before a union election.
  • Employees’ personal and work phone numbers and e-mail addresses would be made available to union organizers for the final voter list. The final voter list now available to all parties only contains names and home addresses and does not permit use of modern technology to communicate with voters. This change would violate employee privacy, King said.
  • The deadline of the final list of employees eligible to vote for or against collective bargaining would be shortened to two work days and be produced, when possible, in electronic form. Employers now have seven days after an election has been called to prepare and file a paper list of employees who are eligible.
  • The time between petitioning for a vote to organize and the election would be shortened. Typically it now takes 38 days from petitioning for collective bargaining to taking a union vote; this would be lessened anywhere from 10 to 21 days, Schaumber said.
  • Delays until after the election some issues that determine whether a union election should have been conducted.
  • The NLRB would have discretion to deny review of post-election rulings, permitting a prompt and final decision in most cases.

The proposed amendments have sparked opposition from various groups, including law firms, the U.S. Chamber of Commerce, the National Retail Federation, and SHRM. In a statement, Liebman predicted the NLRB’s proposals would be controversial.

“The proposed rule changes involve only the mechanics of the representation-case procedures created by the board itself,” the NLRB chair stated.

“They do not involve the other, lawful method of achieving union representation, voluntary recognition through card-check or other means … regulate how election campaigns are run by unions or employers, where or how the elections are conducted, what bargaining units are appropriate, or any of the other substantive election issues that the board regulates … [and] do not establish inflexible time deadlines or mandate that elections be conducted a set number of days after the filing of a petition.”

Comments on the NLRB’s proposed changes are due by Aug. 22, 2011, and may be submitted electronically at http://www.regulations.gov or via mail to Lester A. Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington, DC 20570.

SHRM will submit official comments to DOL and NLRB; state councils and chapters may co-sign SHRM’s official comments. SHRM members also may submit individual comments to www.regulations.gov and forward personal comments to their members of Congress using HRVoice by Aug. 22, 2011. SHRM members may attend meetings with their congressional representatives while those members are on recess during August.

Kathy Gurchiek is associate editor for HR News.

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Related Resource:

Obama Administration Proposes Two Landmark Labor Rules, SHRM Government Affairs

HR News Update e-Newsletter, July 2011


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