Is an “Ambush” The Best Way for Unions to Win Representation Elections?

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The U.S. Department of Labor’s Bureau of Labor Statistics recently published the latest official statistics on union membership for 2013. The figures demonstrate just how far unions must grow in order to reverse the decades-long decline in union density as a percentage of eligible private sector workers.

Today, a majority of the National Labor Relations Board (NLRB) announced proposed changes in union representation election rules and procedures, which demonstrates how far the federal agency is willing to go to reverse the decline in union membership. The “ambush election” rules, as they are commonly called, would overhaul the Board’s traditional Representation Election Rules (or “R-Case Rules”) and dramatically shorten the time (to as little as two weeks) between a union’s petition to the Board to hold an election and the date of the actual election. These “quickie election” rules, as they are sometimes called, would operate to defer voter eligibility and unit determination questions until after the election, require an expedited filing of position statements which thereafter cannot be amended or altered, and require that unions be given employees’ email addresses and telephone numbers prior to the election.

The comment period for the rule expires on April 7, 2014, after which the rule will become effective 60 days after issuance of the final rule.

What’s the problem? Currently, unions win an overwhelming majority of representation elections, almost all of which take place within 60 days of the union’s petition for an election, with the average election taking place in fewer than 40 days after the filing of the petition. For example, unions won 65.2 percent of the 643 private sector elections held in the first six months of 2013, compared with 62.6 percent of 709 elections held in the same period in 2012. So why this new demand for a “rush to judgment”?

The reason is that unions seek—by administrative fiat in lieu of congressional action—to have the Board impose organized labor’s much-sought “quickie election” option, a procedure under which elections will be held in 10 to 21 days from the filing of a petition, so that they will win even more elections. Despite the NLRB’s pronouncements that the purpose for the change is to more effectively administer federal labor laws, the principal purpose for this radical change to the NLRB’s election process is to minimize, or rather, undermine an employer’s legitimate opportunity to exercise its “free speech” rights guaranteed under section 8(c) of the National Labor Relations Act to express its views and opinions freely and inform its employees about collective bargaining. If employees only hear one side—the union side—rather than being fully informed, they are more likely to vote for representation. In effect, unions want the overwhelming advantage of silencing employers in the election process.

A Game Changer? The Trifecta of New Regulations!

Despite six years of a sympathetic, union-friendly administration in Washington, D.C. and a pro-union majority on the National Labor Relations Board, which has done its best to advance union organizing, overall union membership remained static in 2013, with a slight decline in public sector membership and a slight increase in private sector membership.

Last year, unions represented 35.3 percent of public sector workers, with 7,210,000 members, while private sector union density increased ever so slightly to 6.7 percent (up from 6.6 percent in 2012) with 7,318,000 members. Overall, unions represented 11.3 percent of U.S. workers—the same as in 2012. Compare those numbers with union density and membership from 1983, which was 16.5% in the private sector and 20.1% overall.

1. “Quickie” Election Rules

The steady decline in overall union membership has prompted organized labor to search for a new paradigm. If unions cannot readily convince workers to join them under current law, an obvious solution is to change the law or find alternate means to add members. One way is to change the rules to reduce the time that employers have to communicate with their employees once a union petition has been filed—presumably when the union is at its peak strength. The NLRB’s proposed “ambush election” rules would do just that.

2. Specialty Healthcare Bargaining Units

Consider also the NLRB’s new policy on presumptively appropriate bargaining units. Under its Specialty Healthcare decision, the NLRB will likely approve small, fragmented bargaining units of single job descriptions petitioned for by the union unless the employer can demonstrate that other employees, excluded by the union, have an “overwhelming” community of interests. That’s difficult enough for an employer to prove, but the new R-Case rules proposed by the NLRB will deny employers the time to determine which employees would have the requisite degree of similar interests. In fact, under the new proposed rules, such a determination would not be made until after the election has already occurred.

3. “Persuader Activity”—Public Disclosure of Legal Advice

Lastly, the U.S. Department of Labor’s proposed revisions to the “persuader activity” rules under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) threaten to eviscerate the reporting and disclosure exemption in the current law. Under the proposed rules, employers and their outside legal or labor relations counsel would be required to publicly disclose client-attorney confidences, including services rendered regarding legal advice concerning union organizing, collective bargaining, and concerted activity, or else face civil and criminal penalties. That is why the American Bar Association demanded, during the public comment period, that the proposed revisions be withdrawn. If any outside advisor— such as a law firm, labor relations consultant, public relations firm, or even a trade association—were to engage in a single reportable   instance of “persuader” service, it would then have to report all of its “labor relations advice and services” for all of its clients, customers, or members, even though such services might not themselves qualify as “persuader activity.” The proposed persuader activity regulations are currently scheduled to issue in March 2014, and rulemaking for LM-21 reporting forms which will define the phrase, “all labor relations advice and services,” is scheduled for October 2014.

The proposed “persuader” rules, in concert with short deadlines imposed by the NLRB’s new “ambush” election rules, will make it that much more difficult for employers responding to union petitions (1) to properly consent to the public disclosure of client-attorney confidences, and (2) to find law firms to provide advice on how to communicate lawfully with employees. Lawyers, meanwhile, would face a Hobson’s choice: if they do not report, they could be subject to civil and criminal prosecution under LMRDA; but if they do report they might face state bar association discipline, including disbarment, under Rule 1.6 of the Model Code of Professional Responsibility for disclosing client confidences. As a result, employers may find it more difficult to get legal advice when they need it most—during union organizing campaigns, collective bargaining, or strikes.

A Combined Effect

These three changes—the NLRB’s “ambush” election rules and its approval of small, fragmented bargaining units, together with the U.S. Department of Labor’s “persuader activity” rules—can make a real difference in union representation elections. All combine, unfortunately, to reduce employer “free speech” rights guaranteed by the U.S. Constitution and Section 8(c) of the National Labor Relations Act and employees’ access to information prior to voting on union representation. As a consequence, employees may not know the arguments against joining a particular union (certainly the union will not tell them) and only hear the union’s arguments in favor of unionization. The employees may not even know which of their fellow employees are eligible to vote or bargain in the same collective bargaining unit. And employees may find themselves in workplaces subject to unfair labor practices committed by a frustrated, uncounseled employer.

The Best Way for Unions to Organize? Organize the Employer

In the end, perhaps the best way for a union to gain members is not by contested election at all—but rather by the employer that voluntarily recognizes a union based solely on authorization cards and public pressure.

Richard Trumka, the president of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) announced several plans to increase membership without an election at the AFL-CIO’s annual convention.

First, he endorsed “worker centers,” which attempt to organize workers outside the reach of national labor laws, which prohibit secondary boycotts and prolonged recognitional picketing and require union financial transparency. While worker centers cannot engage in formal collective bargaining with employers on behalf of employees, they can rally workers and community groups to pressure employers for increased wages and benefits, or other concessions.

Mr. Trumka also proposed bringing civil rights, religious, environmental, and other advocacy groups inside the house of labor—the purpose being to increase group pressures on employers to voluntarily recognize unions through neutrality agreements and card-check recognition, and to strengthen bargaining demands through multi-pronged corporate campaigns.

Finally, calling for a movement to represent the “99 percent,” not just the 11.3 percent [of workers represented by unions] Mr. Trumka proposed accepting union members within the AFL-CIO without engaging in formal collective bargaining. Instead, the AFL-CIO would provide membership benefits and services in the style of the AARP. Such changes would not result in formal union membership with collective bargaining rights, but might trigger a new category of “union members,” which would increase union density and dues-revenue for possible political spending.

Increasing “true” union membership in certified or recognized bargaining units with collective bargaining rights will be harder to achieve. It may come about through the new “ambush election” rules promulgated by the NLRB, fragmented “micro” bargaining units flowing from the NLRB’s Specialty Healthcare decision, and revisions to the Labor-Management Reporting and Disclosure Act’s “persuader activity” regulations. Yet the most effective organizing methods—”corporate campaigns,” global pressures on employers to voluntarily recognize unions, and other new media meta-tactics—may well lie beyond the reach of today’s proposed rules.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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