New rules could threaten employer, employee communications

Changes affecting union elections proposed

The National Labor Relations Board has issued proposed rule changes that could expedite the union selection process, according to a document released by law firm Jackson Lewis LLP. Chairman Wilma Liebman hinted that such action is currently under consideration.

The Board plans to make the following changes:

  • Acceleration of the initial hearing date following the filing of a representation petition
  • Mandating expansive pre-hearing discovery of issues
  • Curtailing the ability to litigate issues before an election
  • Eliminating the right to file post-hearing briefs

About of 95 percent of all representation elections are held within 56 days, but the new procedures could shave 30 days off the current process.  With these changes, elections could be held in slightly more than three weeks from the filing of a petition.

Additionally,the Department of Labor (DOL) has proposed another rule that would make the activities of attorneys, consultants and employers publically reportable.

The Labor-Management Reporting and Disclosure Act (LMRDA) would require the reporting of arrangements, receipts and expenditures derived from providing services, called “persuader activity.” Generally, attorney legal advice regarding lawful employer communications has been exempt from the reporting requirement, Jackson Lewis says, but the DOL’s proposed rules would make much of the advice provided by attorneys reportable under law, even if the employer’s communication is lawful.

The firm believes the proposed DOL rule will inhibit employers from effectively and lawfully communicating facts and opinions to employees prior to elections. 

There is a 60-day public comment period for both proposals, followed by agency analysis and consideration, before final rules are promulgated.  The rules also are subject to court review.

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