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The National Labor Relations Board (NLRB) has issued the most sweeping changes to its union election procedures in more than 50 years. These changes are designed to dramatically speed up elections and will clearly work to the advantage of union organizers.

Also expected soon is a new standard for “joint employer” status and a new “blacklisting” regulation from the U.S. Department of Labor (DOL), as well as significant anti-business changes to rules governing overtime exemptions for “white collar” employees.

NLRB Issues ‘Quickie’ Election Rule and Other Pro-Union Decisions

In December 2014, after several years of delay, the NLRB adopted controversial changes to its election processing rules. There are more than a dozen procedural rule changes in all, and they are uniformly aimed at shortening the time between the filing of a union petition and the conduct of an election. The new rule is scheduled to take effect April 14 unless it can be stopped in the courts or in Congress. Two lawsuits have been filed challenging the new election rule, including one by Associated Builders and Contractors (ABC).

Under rules that have been in place for more than 50 years, the NLRB typically has given businesses 40 days to conduct an election after the filing of a petition by a union. Employers had rights to contest the unit of eligible voters in a balanced hearing process, and voter privacy and free speech rights were protected (except for disclosure of home addresses).

However, under the new rule:
  • employers will be required to produce new and burdensome information before any hearing is held, within strict time limits;
  • NLRB regional directors will have broad rights to exclude evidence from being presented on voter eligibility questions; and
  • employee privacy rights will be infringed by disclosure of phone numbers and personal email addresses to unions.
Most importantly, employers will have very limited time to communicate with their own employees before a union election is held—as few as 15 to 20 days after a petition is filed.

It remains to be seen whether the new election rules can be stopped from taking effect. In the meantime, employers should prepare for an increase in union organizing and put rapid response plans in place for dealing with union election petitions under the new NLRB rules.

In another long-awaited decision in Purple Communications, the NLRB held for the first time that employees must be allowed to use company email systems to solicit coworkers in favor of unions. The NLRB overruled decades of case law by declaring that employer private property rights to control their own email systems must now give way to union organizing.

The NLRB is expected to issue another pro-union decision in the Browning-Ferris case, potentially changing the standard for “joint employers” in construction and other industries. Meanwhile, the NLRB’s general counsel recently issued an unfair labor practice complaint against McDonald’s based on a joint employer theory among the company and its franchisees that appears to presage more pro-union rulings ahead.

The NLRB also is revisiting a number of anti-business rulings that were set aside by the Supreme Court’s Noel Canning decision, which held last year that several board members were unconstitutionally appointed. New members were subsequently appointed and confirmed with a 3-2 pro-union majority. The new NLRB has continued to issue rulings that adversely impact merit shop
contractors, particularly dealing with employee handbooks, social media and workplace investigations.

Blacklisting Regulations
In 2014, President Obama issued an executive order calling upon the DOL and government procurement agencies to develop unprecedented rules that may result in disqualification of any government contractor that violates one of 14 different labor laws and many more state laws. Among the law violations that could result in disqualification from government contracts are the National Labor Relations Act, Fair Labor Standards Act, Occupational Safety and Health Act, and Davis-Bacon Act. A proposed rule to implement the executive order is expected in 2015, despite many questions about the president’s constitutional authority
to issue the order.

Overtime Exemption Rules
The president issued a memorandum in 2014 directing the DOL to make changes to the so-called “white collar” exemption to the Fair Labor Standard Act’s overtime requirements. The department is expected to issue a proposed rule that would significantly increase the minimum pay and job duties tests for finding exempt status for supervisors, as well as administrative employees, professionals, computer professionals and outside salesmen. ABC, along with many other business groups, will be carefully monitoring and commenting on the proposal.

New OFCCP Rules for Government Contractors
Despite efforts by ABC, the courts refused to block enforcement of the DOL’s new rule on affirmative action for disabled individuals in 2014. Enforcement of the new rule is expected to create new burdens for construction contractors, as the Office of Federal Contract Compliance Programs (OFCCP) reviews efforts to achieve the arbitrary new 7 percent utilization goal for qualified individuals with disabilities. Compounding the problem, the OFCCP has proposed new compensation reporting requirements affecting all construction contractors, which could also go into effect in 2015.

‘Persuader’ Rule
It is unclear whether the DOL will move forward with publication of a final “persuader” rule, which would impact millions of merit shop employers. The rule was indefinitely delayed in 2014 but has not been removed from the regulatory agenda. The department’s proposed rule would eviscerate the “advice” exemption of the persuader reporting requirements of the Labor Management Reporting and Disclosure Act. A broad coalition of business groups, including ABC, is prepared to challenge any final rule in court if the DOL issues it this year.

DOL Attempts to Expand Davis-Bacon to Private Project 
Last April, a federal judge struck down the DOL’s unprecedented ruling expanding coverage of the Davis-Bacon Act to a privately funded, owned and occupied construction project in the District of Columbia, known as CityCenterDC. The DOL has now appealed that decision to the D.C. Circuit Court of Appeals, which is expected to issue a ruling this summer.

ACA Threatens Employer Health Plans
In 2015, employers will begin to feel the delayed impact of the Affordable Care Act unless changes are made by the courts or the new Congress. ABC members should seek information about their obligations under the law from qualified legal counsel.   

Maury Baskin is a shareholder with Littler Mendelson, P.C., Washington, D.C., and general counsel to Associated Builders and Contractors. For more information, call (202) 772-2526 or email mbaskin@littler.com.

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