DOL and NLRB Propose Changes That Could Facilitate Union Organizing
In proposed rules issued within one day of each other, two federal labor agencies have taken significant steps toward making union organizing easier. While the proposed rules, if implemented, would likely have less of an effect in the construction industry – where “bottom-up” union organizing is less common – than in other industries, they still raise serious concerns about employer and employee rights for AGC members.
On June 21, the Office of Labor-Management Standards of the U.S. Department of Labor issued a proposed rule to alter its interpretation of the “advice” exemption to reporting requirements under the Labor-Management Reporting and Disclosure Act (LMRDA) that apply to labor relations consultants (including attorneys and others) who engage in activities to persuade employees concerning their rights to organize or bargain collectively. The LMRDA requires the disclosure of certain details of an agreement or arrangement between an employer and a consultant for such “persuader” activity. No reporting is required, however, if the consultant is merely providing “advice.” The proposed rule would narrow the scope of what is considered “advice,” thereby expanding the breadth of the disclosure requirement. As a consequence, employers could become less able to obtain valuable guidance about their rights and responsibilities during a union organizing drive and assistance in preparing for communications with employees about their own rights and responsibilities.
On June 22, the National Labor Relations Board issued a proposed rule seeking about a dozen modifications to procedures governing union representation elections, effectively compressing the time frame between a union’s filing of a representation petition and a representation election. Currently, representation elections typically occur 45-60 days after a petition is filed. Although the proposed rule does not establish a specific deadline for an election to take place, it is expected to shorten that time frame to 10-21 days. This would be accomplished by shortening deadlines for hearings and required filings, deferring hearings over voter eligibility disputes until after the election, deferring an appeal of an adverse pre-hearing decision until after an election, among other changes. The proposed rule also expands the type of employee information that employers must provide to unions before an election to include employee phone numbers, e-mail addresses, work locations, shifts, and classifications. The changes would provide unions with greater opportunity to communicate their views about union representation to workers while reducing employers’ opportunity to communicate their views.
AGC plans to submit comments opposing each of the regulatory proposals during the public comment period. The comment period for both rules ends August 22.
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