NLRB and Department of Labor Attempt to Make
End-Run Around Employee Free Choice Act

August 2011

While organized labor failed in its attempt to pass the Employee Free Choice Act in Congress, the NLRB is attempting to implement much of organized labor’s wishes through rule-making by proposing new regulations that would eliminate important protections and speed up the election process. Even though organized labor has won approximately 67% of all NLRB elections over the last two years, unions are attempting to have the NLRB implement these rules to make their organizing efforts even easier. The proposed NLRB rules provide that a representation election can be conducted in as few as ten days after the union has filed its petition with the NLRB. Even the filing of petitions will be made easier, as unions will now be permitted to submit petitions for representation by email. 

Another new proposed rule requires an employer to file a Statement of Position with the Board which will preclude an employer from offering additional information about the unit seeking union representation at a hearing or any subsequent proceeding if it was not included in the original Statement of Position. Once a petition is filed a hearing could be held in as few as seven days at which the employer would be required to provide the names and classifications of all employees in the union’s proposed unit. Other issues the employer may have would be deferred until after an election is held as the new regulations would eliminate Board review of pre-election decisions. When a Direction of Election is issued by the Regional Director, the new rule would shorten the time from 7 days to 2 work days for serving the list of eligible voters and would require the employer to disclose not only the address but also the telephone number and email address (if any) of the employees. Lastly, the proposed new regulations would make Board review of post-election challenges discretionary (from the current mandatory), essentially leaving an employer with no NLRB remedy from an adverse ruling if the Board decides not to take the case. 

Also weighing in on election issues is the U.S. Department of Labor, which recently proposed rules which, if enacted, would require employers to file a report (which is open to public view) including the date, amount and type of “persuader activity” of all consultants and attorneys. In addition, the Department of Labor is seeking to revise the “advice” exemption which in the past has provided confidentiality between employers and their attorneys who have merely provided an employer with advice regarding their legal rights and only required public disclosure of such arrangements when employees had been directly contacted by the attorney. The proposed revision will now require public disclosure when the advisor indirectly “persuades” employees by providing persuader material for dissemination to employees, coordinating or directing the activities of supervisors or employer representatives to engage in persuasion, or drafting of implementing policies that have an object to persuade. The revised rule purports to retain an exemption for giving legal advice (e.g., what an employer can or cannot say to employees, ensuring compliance with the law, or providing guidance on NLRB practice or precedent); however, it is far from clear how distinctions will be drawn and by whom and a broad reading of the rule has the potential to interfere with attorney-client privilege in union election matters. 

Verbal Complaints Are Protected Under the FLSA. 

This past spring, the UnitedStates Supreme Court ruled for the first time that verbal complaints made by an employee can be considered “protected conduct” under the anti-retaliation provisions of the Fair Labor Standards Act of 1938. Thus, an employee who makes only a verbal complaint with regard to his or her wages, hours of work or similar concerns covered by the FLSA, is just as protected as an employee who complains in writing. In the case considered by the Court, the plaintiff lodged a verbal complaint in a matter covered by the federal wage and hours laws. In reaching its conclusion that verbal complaints were sufficient to trigger the FLSA’s anti-retaliation provisions, even though the statute requires a “filing,” the Court noted that limiting the law’s applicability to written complaints would both undermine the FLSA’s basic objectives and weaken its enforcement. 

As such, the Court found that both verbal and written complaints would be covered by the FLSA’s anti-retaliation clause as long as the complaint is clear and detailed enough so that a reasonable employer would understand it as an assertion of rights protected by the statute. Just how broadly this “fair notice” standard will be interpreted remains to be seen. However, in light of this decision, employers should give verbal complaints the same attention as written ones and conduct an appropriate investigation.