Employers beware. In the face of Congressional gridlock, the Obama administration is quietly advancing big labor’s growth agenda through key agency appointments and subtle rule changes. All of this is intended to make it easier for unions to add new workers to its rolls. Following Obama’s huge election victory, labor unions who worked tirelessly to get him elected were looking forward to quick passage of the so-called Employee Free Choice Act. EFCA, as it was known, seemed like a shoo-in at first. The legislation was originally co-authored by President Obama when he was in the Senate. And, it looked as though the Democrats would secure enough votes in the Senate to ensure passage. However, EFCA ran into a legislative buzz saw when Democrats failed to secure a filibuster proof Senate majority. Then, the bottom fell out of the economy, pushing labor law reform off the Congressional agenda. Many predicted that labor law reform would finally die with the Republican sweep of the mid-term elections. They were wrong. The administration has opted for a highly potent, yet less visible, tactic for reshaping the labor law landscape. Instead of seeking Congressional cooperation to pass reform legislation, the administration is working an inside game at labor law watchdog agencies such as the U.S. Department of Labor, the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs. Key agency appointments have gone to those that are in tune with the president’s labor friendly agenda. As expected, these agencies have begun to announce new anti-employer enforcement initiatives and rule changes which threaten the competitiveness of U.S. businesses on the world stage. In the labor relations arena, the National Labor Relations Board is charged with the responsibility to enforce the law governing union-management relations. A key provision of that law deals with how employees go about selecting a union at their workplace. Though these rules have been in place since 1935, Mr. Obama’s appointees to the five member NLRB are poised to make sweeping changes designed to swell union ranks. For example, for the past 75 years, employees have decided the union question by participating in an NLRB supervised secret ballot election. The entire process is initiated when a group of employees (at least 30%) or a union seeking to represent them files a formal request asking the NLRB to hold an election at their worksite. Typically, the election will be scheduled some six weeks later. During the run-up to the election, both the union and the employer have the legal right to engage in an information campaign designed to win the hearts and minds of the employee voters. However, NLRB rules impose a strict set of requirements on both sides so that neither side unduly influences the election outcome. Oddly, big labor has come to view the secret ballot process as an impediment to organizing success. They believe that their odds of convincing employees to join a union go way down because the employer is allowed to weigh in on the issue during the run-up to the election. If big labor has its way, the election will be held in just a few days, leaving employers little time to communicate with employees on the subject before a vote is taken. The election timetable is a matter within the NLRB’s discretion. Another proposal being discussed is doing away with the secret ballot entirely. That’s what the unions wanted with EFCA. If they have their way, they’d be able to obtain legal representation if the union and its supporters convince a majority of the employees to sign a petition or union pledge card. NLRB cases are rife with examples of union intimidation and coercion in getting employees to sign up. The secret ballot was intended to protect employees from such pressures. A union organizer presently has no legal right to enter the employer’s private property to speak with employees. However, NLRB rules require employers to furnish the union with a list of the employees and their home addresses after the union musters up enough support to ask for a secret ballot. This too may change. Proponents of labor law reform want employers to furnish the employee list much sooner in the process, and well before there is any indication of serious employee interest in joining a union. Under the guise of “equal time”, unions also want the legal right to meet with employees during the workday. Things are already happening at the NLRB to advance this agenda. On his first day in office, Mr. Obama elevated Democrat Wilma Liebman to the chairmanship of the NLRB. Ms. Liebman has authored many pro-union decisions during her tenure with the NLRB. on the board Since then, President Obama has appointed two more Democrats to sit as board members. Mark Gaston Pearce and Craig Becker both spent their entire careers as union side labor lawyers. The fourth seat was filled by a Republican and the fifth seat remains vacant. The net result is that the board is currently comprised of three former union-side attorneys and one former management-side attorney. In June, Mr. Obama appointed career NLRB attorney Lafe Solomon to serve as the NLRB Acting General Counsel. This is the top investigative and prosecutorial position in the agency. The General Counsel decides which cases will be prosecuted and what positions the NLRB will take on various substantive matters. As one of his first major policy changes, Mr. Solomon announced a plan on September 30 to make it easier for NLRB lawyers to take employers to court when charged with unfair labor practices. The board also announced that it will change the way it calculates interest on back pay awards to make it more expensive for employers charged with an unfair labor practice. What’s next? The board recently announced that it will prosecute an employer who fired an employee because the employee made disparaging remarks about the company and his supervisor in a Facebook posting. The employer had a social media policy which prohibited employees from making disparaging remarks about the company in public. The NLRB believes that employer rules against such public rants unfairly inhibit federally protected employee rights to discuss their working conditions. A top priority for big labor is shortening the election timeline. NLRB statistics reflect that unions are more likely to win an election where the employer has little time to respond to the union’s campaign rhetoric. However, where the time is extended, employees are able to consider additional information and viewpoints before voting, resulting in fewer union election victories. Member Pearce announced a few weeks ago that he believes that the board should shorten the time before the election to as little as 5-10 days. Changes are afoot at the NLRB. Since the NLRB is vested with broad powers to affect changes in the workplace, employers will want to monitor these developments. In the meantime, there are still many proactive steps employers may take to increase the odds of success in maintaining non-union status. It’s also a good idea to have labor counsel review your employee manual and personnel policies to ensure compliance with the new NLRB rulings. Many employers find themselves on the receiving end of an NLRB prosecution just for having an offending rule in their handbook. Richard S. Rosenberg is a founding partner of Ballard Rosenberg Golper & Savitt LLP, a management side labor law firm in Glendale. Rosenberg was selected as one of the 25 best lawyers in the San Fernando Valley. He may be reached at (818) 508-3700 or [email protected].
Is There A Union In Your Future (Part III): Quiet Change
