The Past Is Prelude For Labor Law

Wednesday, December 19, 2012 - 11:15
Glenn Spencer

Glenn Spencer

For aficionados of labor law, the past four years will long be remembered. Between the epic failure of Card Check, an activist National Labor Relations Board (NLRB, or the Board) continually pushing the envelope, and dramatic changes in state policies, there has been no shortage of excitement and turmoil. 

Some undoubtedly hoped that the 2012 elections might settle things down. Instead, the results confirmed that what has taken place since 2009 was just the beginning. 

Unions will use the last four years of the Obama administration to squeeze as much as possible from the federal regulatory agencies. The business community, by contrast, will largely be playing defense, seeking to curb what these agencies will be dispensing. In the states, the reverse might be true, with unions looking to hold off new legislation in the 23 states where Republicans will control both houses of the legislature and the governor’s mansion.

At the federal level, the list of potential regulatory incursions makes unpleasant reading for those seeking to maintain, grow or start a business. These include: 

The Persuader Rule: The Department of Labor is likely to issue a final rule gutting the “advice” exemption under Section 203(c) of the Labor Management Reporting and Disclosure Act. Under this rule, employers who respond, or even make plans to respond, to union organizing will confront onerous new financial disclosure requirements. Law firms that work on labor issues may face even more drastic reporting obligations. 

Union Access: The NLRB may finally issue a ruling in the Roundy’s case dealing with union access and grant unions greater access not just to employer’s physical property but also to their virtual property, such as email systems or intranet sites.

Ambush Elections: Although the NLRB’s ambush election rule is currently stymied in litigation, the Board is free to reissue the rule at any time. The status of dubious recess appointments (themselves the subject of lawsuits) does complicate such a course of action, but NLRB Chairman Mark Pearce has made clear that, whether with this batch of Board members or new ones appointed in Obama’s second term, ambush elections are coming.

Release of Employees’ Personal Information: When the initial ambush election rule was issued, a requirement for employers to give to union organizers workers’ home phone numbers, email addresses and work shifts was omitted. According to Mark Pearce, this requirement will be revisited, either on its own or as part of a reissued ambush election rule.   

Off-Site Elections: In the 2011 2 Sisters decision, the NLRB signaled a strong desire to hold re-run elections away from the workplace. It may only be a matter of time before the Board extends the logic of 2 Sisters to initial elections as well, giving unions an intrinsic advantage. 

Employee Meetings: In a dissent to the same 2 Sisters decision, former NLRB member Craig Becker argued that meetings employers hold during the workday to give their perspective on unionization (so-called captive audience meetings) are inherently coercive and should be banned.  When the right case comes before the NLRB, it may decide to bring Mr. Becker’s views to fruition.

Concerted Activity: The NLRB has taken protection of concerted activity to an almost illogical extreme. Commonplace employer policies have been declared unlawful, including at-will disclaimers, restrictions on off-duty access to the workplace, prohibitions on unauthorized employees speaking to the media, restrictions on disclosure of co-workers’ personal information, requests to maintain confidentiality with regard to workplace investigations, and requirements that workers act courteously to each other and customers. Virtually any policy that could conceivably be construed as interfering with concerted activity is in the crosshairs. More of this enforcement is coming, disrupting both unionized and non-unionized workplaces.

Social Media: Employers’ social media policies are also being targeted. The NLRB has struck down policies that limit use of company logos and trademarks, encourage courteous discussions, discourage employees from making disparaging remarks about their employer and co-workers, and even prohibit workers’ use of employer-provided technology to attack their company. This excessive enforcement will only become more onerous in 2013.

Supervisors: The NLRB may seek to redefine supervisors, shrinking the pool of workers who can be considered as such. In so doing, the Board can increase the number of workers eligible to unionize while making it that much harder for an employer to counter an organizing campaign. 

High Road Contracting: In 2010, the administration floated the idea of making “labor standards” part of the scoring criteria for government contracts. These labor standards included paying a “living” wage, offering pension and health benefits, and providing paid sick leave. To win the highest score on a contract proposal, this expanded compensation would have to be provided to all employees in a contractor’s workforce – not just those working on the contract. The idea was shelved during Obama’s first term but might resurface, particularly since the Service Employees International Union (SEIU) is one of its main proponents. Additional labor standards – such as Card Check and neutrality during organizing drives – could be added to such an executive order.

This is a daunting list for employers and workers, and it is by no means exhaustive. Yet while the unions have an aggressive agenda at the federal level, in the states they are largely playing defense, or seeking retribution. 

Michigan, for example, just became the 24th right-to-work state. And several other state-level issues are noted on the AFL-CIO’s website, including restrictions on public sector unions, bans on project labor agreements and paycheck protection. Given the increasing dominance of the public sector within the union movement, most of which can be regulated under state law, developments in the states have the potential to significantly weaken organized labor’s overall agenda.

So while employers have much to be concerned about in 2013, it is by no means assured that unions will have it all their way. Indeed, while unions blitz ahead on the central front of federal policy, they will have to carefully guard their flanks in the states. It may be another stressful year for employers and unions alike.

Glenn Spencer is Vice President of the Workforce Freedom Initiative at the U.S. Chamber of Commerce.

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