06.23.2011
Proposed Department Of Labor And National Labor Relations Board Rule Changes Will Likely Energize Labor Unions

This week proposed changes in the rules affecting labor relations have come from two federal agencies.

The Department of Labor (DOL) has, for many years, enforced the Labor Management Reporting and Disclosure Act.  That law requires reporting by unions on their financial health and business transactions.  It also requires reporting by employers and management consultants on arrangements by which management communicates to employees on labor relations issues. The management obligations have not extended to attorney-client relationships or otherwise invaded attorney-client privilege. The proposed regulations would expand the reporting obligations to include arrangements that employers enter into for direct or indirect communication with employees about labor issues.  The DOL will receive comments on the proposed regulations in the weeks ahead.  The debate is likely to be quite intense, particularly as questions arise on the scope of the reporting obligation and the potential invasion of attorney-client privilege.

A prior effort to expand management reporting obligations was attempted during the Clinton Administration, but it failed. An expanded reporting obligation for management has long been a goal of the current Administration.

The day after DOL announced its proposals, the National Labor Relations Board (NLRB) announced that it would pursue changes to its representation election process. NLRB has typically held workplace elections, for employees to decide on union representation, within 42 days of the filing of an election petition.  The 42 days period became the norm during the Clinton Administration, shortening the period that had previously existed. There has been much speculation over what the NLRB's changes would mean for the election process. Basic points include that the pre-election period would be shorter than 42 days and that the Labor Board would try to eliminate pre-election hearings and litigation over voter eligibility, saving such issues for a post-election review phase. Much remains to be clarified.  The Labor Board will be receiving public comments in the weeks ahead.  Debate is already quite intense on these issues. 

Since proposed legislation to stimulate union organizing in the Employee Free Choice Act failed during the 2008-2009 period, the Labor Board's internal regulatory process has gained attention from advocates of labor law reform as the next best vehicle to promote organizing and to restore labor's reliance on the NLRB and its processes.

Debate, developments, and media attention are likely to follow through the summer. Employers should, at minimum, stay tuned and, consider whether it is in their interest to make public comment on these issues before new rules take effect.

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