DOL TO EMPLOYERS: SHOW US YOUR BOOKS

From the desk of Steve Cabot: With his Congressional rubber stamp privileges revoked by the decisive loss of the House of Representatives last November, President Obama continues to use the rule-making and regulatory powers of the Executive Branch to work his will on employers.  He seems emboldened by the push-back from the American people, and is doubling down on his efforts to “transform” the country in his remaining time in office.

Previously, we described how the Democrat-dominated NLRB recently proposed rules which would significantly impact management’s ability to makes its case leading up to a union ratification election. Now it’s the Department of Labor which has stepped in to influence and intimidate employers who seek advice from outside attorneys and consultants (officially known as “persuaders”) as they prepare for these elections.

Specifically, the DOL has proposed a rule related to the reporting requirements under Section 203 of the Labor-Management Reporting and Disclosure Act of 1959, which would broaden “advice” to mean any “oral or written recommendation regarding a decision or course of conduct.” The rule stipulates that both the company and its consultants must open their books to report any of the newly-covered activities – and, even more intrusively, the details of any compensation involved.

As usual, the devil is in the details, as found in the language of the rule:

“For example, persuader activities may additionally include: Training or directing supervisors and other management representatives to engage in persuader activity; establishing anti-union committees composed of employees; planning employee meetings; deciding which employees to target for persuader activity or discipline; creating employer policies and practices designed to prevent organizing; and determining the timing and sequencing of persuader tactics and strategies.”

The rule goes on to state that even “union avoidance” seminars and conferences offered by lawyers or labor consultants to employers will constitute “reportable persuader activity.”  The proposed rule was  published on June 21, 2011, in the Federal Register. Public comments can submitted until August 22, 2011.

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A NEW THREAT TO CORPORATE AMERICA

From the Desk of Steve Cabot: Having failed to get congress to pass the Employee Free Choice Act (EFCA), organized labor is now benefitting from proposed new rules issued by the National Labor Relations Board (NLRB). The new rules will ease the way for organized labor to win union elections by dramatically truncating the period of time from petition to election. It currently takes an average of 57 days from petition to election; under the new rules that period would be reduced to from 10 to 21 days. Of course, union organizers often spend months convincing employees to vote for unionization, prior to the filing of a petition. Now, the newly imposed brief interregnum will significantly curtail a company’s ability to educate employees about the disadvantages of unionization.

As if that were not sufficiently injurious to Corporate America, the NLRB rules would also permit the electronic filing of election petitions, defer litigation about voter eligibility until after an election, require employers to provide a union with the phone numbers and e-mail addresses of all employees prior to an election, consolidate all litigious matters into a single post-election appeals action in order to eliminate individual actions that could delay an election.

One can only speculate what additional pro-union rules and regulations the NLRB may issue in the coming months. Certainly issues of wages and benefits will be an enticing subject for the NLRB ideologues to consider.

Corporate America has, thus far, been too complacent, believing that because the number of union members has decreased over the years that unions have been rendered ineffectual. In fact, unions are vigorously preparing for an aggressive assault on Corporate America, and its chief advocate and front-line ally is the NLRB, which is proposing a number of radical threats to Corporate America that should not be ignored.

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ORGANIZE TODAY, WIN TOMORROW?

From the desk of Stephen Cabot: For several months, I have been writing that the NLRB has been looking for ways to do an end run around the mis-named Employee Free Choice Act. Ideologically disposed to providing whatever support it can to unions, the NLRB's latest intention is to endorse quickie elections to hasten union representation. The time from petition to election usually takes 38 days. However, Mark Pearce, a Board member, would like to shorten that period of time to between five and ten days, which is what exists in Canada. In order for employers to present their side of the unionization story, to educate their employees to what they will be losing if they vote for union representation, they need sufficient time to communicate facts and concepts to employees. And because union organizers usually operate in secret, employers will not know that their employees have been the targets of union propaganda until a petition has been filed. Five to ten days will hardly be adequate time for management to present its case. After all, the union organizers may have been propagandizing workers for weeks, if not months. A quickie election is indeed an end round around the dormant Employee Free Choice Act. Instead of card checks, union authorization cards will lead to petitions which will lead to quickie elections. Five days later, a union will be in place. Say hello to the Employee Free Choice Act in disguise. It is, therefore, essential that Corporate America pro-actively develop strategies for defeating such scenarios. And the time for doing so is Now!

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